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POHTUND  CEWEHT  C.Oi!ir.\«& 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OE  CALIEORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


# 


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COY  ^yJ^I^ETT 


INJURIES 

TO 

INTERSTATE  EMPLOYEES 
ON  RAILROADS 


A  TREATISE  ON  THE  FEDERAL  EMPLOYERS '  LIABILITY  ACT  OF  1908, 
AS  AMENDED,  WITH  AN  APPENDIX,  CONTAINING  A  COPY  OF 
THE  ACT,  TOGETHER  WITH   ALL  FEDERAL   STATUTES 
AND  ORDERS  OF  THE  INTERSTATE  COMMERCE 
COMMISSION  FOR  THE  SAFETY  OF  RAIL- 
ROAD  EMPLOYEES 


By  MAURICE  G.  ROBERTS 

Of  the  Missouri  Bar 


CHICAGO 

CALLAGHAN  AND  COMPANY 

1915 


COPYRIGHT    1915 
BY 

CALLAGHAN  &  COMPANY 


r 


DEDICATION 
To  JUDGE  O.  M.  SPENCER 

WHOSE    DISTINGUISHED    AND    HONORABLE    CAREER    AS    A    STATE ' 

ATTORNEY,  JUDGE  AND  COUNSELOR  HAS  PLACED  HIM  IN  THE 

FRONT   RANK   OP    MISSOURI'S   POREMOST   LAWYERS,    THE 

FOLLOWING  HUMBLE  EFFORT  IS  MOST  RESPECTFULLY 

INSCRIBED   BY   ONE   WHO    HAS  ENJOYED   HIS 

FRIENDLY  INTEREST  AND  HAS  PROFITED 

BY    HIS    SANE    COUNSEL 


?35SB9 


PREFACE 

The  enactment  of  the  Federal  Employers'  Liabil- 
ity Act  of  1908  by  Congress  and  the  controlling  de- 
cisions of  the  United  States  Supreme  Court  deliv- 
ered during  the  years  1912,  1913  and  1914,  con- 
struing and  applying  the  statute,  have  revolutionized 
the  law  of  liability  of  all  railroad  companies  in  the 
United  States  to  their  employes  engaged  in  inter- 
state commerce.  Prior  to  the  exercise  by  Congress 
of  its  dormant  power  under  the  interstate  commerce 
clause  of  the  United  States  Constitution  by  the 
passage  of  this  statute  which  governs  exclu- 
sively the  liability  of  all  railroad  companies  for  all 
injuries  or  deaths  occurring  under  the  conditions 
prescribed  in  the  act,  that  is,  while  the  carrier  is 
engaged  and  the  injured  servant  is  employed  by  it 
in  such  commerce,  state  laws  where  the  casualties 
occurred  determined  the  rights  of  the  one  and  the 
liability  of  the  other.  Now  one  unifonn  law  con- 
trols throughout  the  United  States  in  determining 
the  rights  of  interstate  employes  of  common  car- 
riers by  railroad  when  injured  and  their  dependent 
beneficiaries  in  cases  of  death.  As  at  least  80  per 
cent  of  all  railroad  employes  in  the  United  States 
are,  under  recent  decisions  of  the  United  States 
Supreme  Court,  engaged  in  interstate  commerce 
within  the  purview  of  this  statute,  the  sweeping 


VI  PREFACE 

changes  by  and  the  far  reacliing  effect  of  this  law 
in  superseding  state  control  over  the  subject  matter 
of  personal  injuries  to  employes  on  railroads,  may 
be  readily  seen. 

Owing  to  the  doubt  and  uncertainty  as  to  the  con- 
stitutionality of  this  law,  prior  to  the  decision  of 
the  national  Supreme  Court  in  the  Mondou  case, 
decided  Januarj^  15,  1912,  in  which  the  validity  of 
the  act  was  sustained  in  all  its  parts,  but  few  suits 
had  been  brought  under  the  federal  statute.  Since 
that  time  the  courts  have  been  flooded  mth  actions 
under  this  statute  and  up  to  March  1,  1915,  the 
United  States  Supreme  Court,  alone,  notwithstand- 
ing its  limited  power  on  writ  of  error,  had  delivered 
opinions  in  twenty-nine  cases  construing  and  apply- 
ing this  act.  During  the  same  period  between  500 
and  600  cases  under  this  act  have  been  decided  by 
state  appellate  courts,  federal  district  courts,  and 
federal  circuit  courts  of  appeals,  so  that  now  the 
majority  of  the  many  and  perplexing  questions  in 
the  application  and  construction  of  this  statute  have 
been  solved. 

A  text-book,  therefore,  dealing  with  the  many  and 
various  problems  confronting  the  courts  by  reason 
of  the  enactment  of  this  law  and  citing  and  analyz- 
ing these  hundreds  of  cases,  many  of  them  recently 
decided,  by  national  and  state  courts,  the  author 
believes,  should  be  of  assistance  to  his  fellow-law- 
yers and  the  courts  and  should  be  of  permanent 
value.  This  duty,  the  author  has  attempted  to  ful- 
fill during  spare  moments  while  actively  engaged  in 
the  practice  of  law. 

For  the  convenience  of  the  profession  parallel  ref- 


PREFACE  VU 

erences  have  been  inserted  to  N.  C.  C.  A.  (where 
most  of  the  cases  cited  in  the  work  will  be  found 
either  reported  in  full  or  thoroughly  abstracted) 
and  to  L.  E.  A.,  American  Annotated  Cases,  and 
the  Lawyers'  Edition  of  the  United  States  Supreme 
Court  Reports.  References  to  the  Federal  Statutes 
Annotated  have  also  been  inserted  in  addition  to 
the  official  citations. 
Richmond,  Mo.,  April,  1915. 

M.  G.  Roberts. 


TABLE  OF  CONTENTS 


CHAPTER  I. 


SCOPE,  PURPOSE,  VALIDITY  AND  EFFECT  OF  FEDERAL 

ACT. 

PAGE. 

§      1.  Scope  of  the  Federal  Employers'  Liability  Act 1 

§      2.  Purpose  of  the  Act 2 

g      3.  First  Federal  Employers '  Liability  Act  Invalid 4 

§      4.  Second  Federal  Employers'  Liability  Act  Valid 5 

§      5.  Extent  of  Power   Exercised  by  Congress  in  Passing  the 

Federal  Act   '^ 

§      6.  Amendments  of  1910 10 

§      7.  Effect  Upon  State  Laws H 

§      8,  Decisions  of  National  Courts  Construing  Act  Control 15 

§      9,  Laws  of  State  Control  as  to  Procedure 16 


CHAPTER  n. 
NEGLIGENCE  UNDER  THE  FEDERAL  ACT. 

§    10.  The  Statutory  Provision   18 

§    11.  Two  Branches  of  Negligence  Under  First  Section 19 

§    12.  Negligence  Criterion  of  Liability  Under  National  Statute.     19 

§    13.  Negligence  Must  Be  Proximate  Cause  of  Injury 23 

§    14.  Actionable  Negligence  Must  Have  Natural  Relation  to  Em- 
ployment     • • •     24 

§    15.  Meaning  of  the  Phrase  ' '  In  Whole  or  in  Part " 30 

§    16.  Recovery  Cannot  Be  Defeated  by  Calling  Plaintiff's  Act 
Proximate  Cause  When  Defendant's  Negligence  Is  Part 

of  Causation 31 

§    17.  Casualties  Due  to  Sole  Negligence  of  Employe,  No  Recov- 
ery Under  Federal  Act 32 

§    18.  In  Actions  Under  Federal  Act  Prosecuted  in  State  Courts, 
Decisions   of   National   Courts   Control   in   Determining 

Negligence — Contrary  Rulings 34 

§    19,  Negligence  of  Human  Agencies  Not  Limited  to  Fellow 

Servants  as  Construed  Under  Common  Law 43 

is 


X  INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

PAGE. 

§  20.  Statute  Covers  Negligent  Act  of  Intrastate  Employes  and 
Defects  in  Instrumentalities  Used  Solely  in  Intrastate 
Commerce 44 

§    21.  Negligence  Need  Not  Be  Proven  When  Violation  of  Federal 

Safety  Appliance  Act  Is  Cause  of  Injury 46 

§  22.  Applicability  of  Doctrine  of  Ees  Ipsa  Loquitur  Under  Fed- 
eral Act — Conflicting  Kulings 48 

§    23.  Cases  Under  Fedefal  Act  in  Which  the  Facts  Were  Held 

to  Show  Actionable  Negligence 50 

§    24.  Cases  Under  Federal  Act  in  Which  the  Facts  Were  Held 

Not  to  Show  Actionable  Negligence 60 

§    25,  Wilful  Wrongs  Not  Within  Terms  of  the  Act 65 


CHAPTEE  III. 
EMPLOYES  INCLUDED  WITHIN   THE  FEDEEAL  ACT. 

26.  Statute  Includes  Only  Employes  Injured  While  Engaged 

in  Interstate  Commerce 67 

27.  Servants  Engaged  in  Both  Kinds  of  Commerce 68 

28.  Train  Men  on  Interstate  Trains  Are  Employed  in  Inter- 

state Commerce 69 

29.  When  Trainmen  Are  Not  Engaged  in  Interstate  Commerce .     70 

30.  Bridge  Workers  and   Carpenters   Employed  in   Interstate 

Commerce,  When    72 

31.  When  Car  Eepairers  and  Eoundhouse  Employes  Are  En- 

gaged in  Interstate  Commerce 77 

32.  When  Car  and  Engine  Eepairers  Are  Not  Engaged  in  In- 

terstate Commerce  80 

33.  Test  in  Determining  When  Switching  Crews  Are  Engaged 

in  Interstate  Commerce 83 

34.  Switching  Crews  Engaged  in  Interstate  Commerce 86 

35.  Switching  Cars  Containing  Intrastate  Shipments  Into  or 

Out  of  Interstate  Trains — Conflicting  Eulings 88 

36.  Section  Men  and  Track  Laborers 93 

37.  Employes  Preparing  or  Moving  Materials  or  Instrumentali- 

ties to  Be  Used  on  Interstate  Trains 94 

38.  Employes  Preparing  Interstate  Trains  for  Movement 97 

39.  Employes  on  Premises  of  Eailroad  Company  Going  to  or 

from  Work 99 

40.  Employes  Engaged  in  the  Original  Construction  of  Instru- 

mentalities for  Future  Use  in  Interstate  Commerce  Not 
Within  the  Act 103 


TABLE  OF  CONTENTS  XI 

PAGE. 

41.  Eepairing  or  Rebuilding  Instrumentalities  Used  in  Inter- 

state Commerce 106 

42.  Yard  Clerks  Engaged  in  Interstate  Commerce,  "When 107 

43.  Pullman  Employes 108 

44.  Agents  of  Express  Companies 109 

45.  Miscellaneous  Employes   109 

46.  Instances   Where   Employes   Were   Engaged   in  Interstate 

Commerce  but  Erroneously  Held  to. Have  Been  Engaged 

in  Intrastate  Commerce   110 

47.  Instances  Where  Employes  Were  Engaged  Exclusively  in 

Intrastate  Commerce  but  Erroneously  Held  by  the  Courts 

to  Have  Been  Engaged  in  Interstate  Commerce 114 

48.  Employes   Presumed   to   Be   Engaged   in   Intrastate   Com- 

merce     116 

49.  Intrastate  Employes  Injured  by  Negligence  of  Interstate 

Employes  or  Instrumentalities  of  Interstate  Commerce 
Have  No  Remedy  Under  Federal  Act 116 

50.  Decisions    Construing    Federal    Safety    Act    Not    Always 

Applicable  in  Construing  Employers'  Liability  Act 117 

51.  When   Questions  of  Employment  in  Interstate  Commerce 

Should  Be  Submitted  to  Jury 119 


CHAPTER  IV. 
RAILROADS  INCLUDED  WITHIN  THE  FEDERAL  ACT. 

52.  General  Rule  as  to  When  Railroad  Companies  Are  Engaged 

in  Interstate  and  Foreign  Commerce 121 

53.  Railroads  Within  the  Act  Defined 122 

54.  Railroad  Must  Be  a  Common  Carrier — Tap  Lines  and  Log- 

ging Roads 123 

55.  Proof   That   Injured   Servant   Is   Employed  in   Interstate 

Commerce  Sufficient  to  Show  That  the  Railroad  Is  So 
Engaged 125 

56.  Receivers   of  Railroad   Corporations  Included  Within   the 

Act    126 

57.  Lessor  of  Railroad  Engaged  in  Interstate  Commerce  Liable, 

When    127 

58.  Interurban  Electric  Railroads  Included  Within  the  Act.  . .    130 

59.  Railroads  Carrying  Passengers  and  No  Freight 130 

60.  Ships  or  Vessels  Not  a  Part  of  a  Railroad  System 131 

61.  Street  Railroads  Not  Within  the  Terms  of  the  National 

Act    131 


Xll         INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

PAGE. 

§    62,  Hauling   Empty   Cars   or   Company   Property   Over   State 

Line    133 

§    63.  Instances    Showing    Engagement   by   Railroad   Companies 

in  Interstate  Commerce 133 

§  64.  Beginning  and  Ending  of  Interstate  Character  of  Ship- 
ments        134 

§  65.  Intermediate  Carrier  with  Line  Wholly  in  One  State  Par- 
ticipating in  Movement  of  Interstate  Shipments 135 

§    66.  Shipments   Between   Two   Points   in   Same   State   Passing 

through  Another  State  in  Transit 135 

§  67.  Eailroad  Lines  Confined  Within  Limits  of  a  Single  State 
Engaged  in  Interstate  Commerce  When  Transporting 
Through  Shipments  to  or  from  Another  State 136 

§  68.  When  Eeshipment  from  Point  of  Delivery  Changes  Inter- 
state Character  of  Traffic 138 

§    69.  When  Eeshipment  from  Point  of  Delivery  Does  Not  Change 

Interstate  Character  of  Traffic 141 

§    70.  All  Carriers  by  Eailroad  and  All  Their  Employes  Within 

Territories  Included 144 


CHAPTEE  V. 

BENEFICIARIES  AND  DAMAGES  IN  DEATH  CASES  UNDER 
FEDERAL  ACT. 

§    71.  Beneficiaries  Under  the  Federal  Statute 146 

§    72.  Existence  of  Beneficiaries  Named  in  Statute  Jurisdictional.    146 
§    73.  Parents  Not  Entitled  to  Damages  When  There  Is  a  Widow 

or  Children 147 

§    74.  No  Eemedy  Under  the  Federal  Act  Unless  There  Are  De- 
pendent Eelatives  Named  in  the  Statute 148 

§    75.  Measure  of  Damages  in  Cases  of  Death  Under  the  Federal 

Act    150 

§    76.  Damages  for  the  Estate  of  Decedent  Not  Recoverable 150 

§    77.  No  Presumption  of  Damage  to  Widow  and  ChUd 151 

§    78.  Loss  of  Society,  Companionship  and  Wounded  Affections 

Not  Elements  of  Damages 152 

§    79.  Statutory  Action  Is  Not  for  the  Equal  Benefit  of  Each  of 

the  Surviving  Beneficiaries 153 

§    80.  Cases  Under  Federal  Act  in  Which  Courts  Decided  Question 
of    Sufficiency    of    Proof    to    Establish    Dependency    of 

Beneficiaries  in  Second  and  Third  Classes 154 

§    81.  Loss  of  Care,  Counsel,  Training  and  Education  by  Minors 

Proper  Elements  of  Damages 158 


TABLE  OP  CONTENTS  Xlll 

PAGE. 

82.  Pecuniary  Loss  Not  Dependent  Upon  Any  Legal  Liability 

of  the  Employe  to  the  Beneficiaries 160 

83.  Alien  Parents  Residing  Abroad  May  Recover  Under  Federal 

Act 161 

84.  No  Recovery  for  Pain  and  Suffering  of  Deceased  Prior  to 

1910  Amendments 162 

85.  No  Recovery  Under   (Ajnendments  1910)   When.  Death  Is 

Instantaneous .s^t^'%.*^ 163 

86.  Decisions  of  National  Courts  on  Measure  ot  Damages  Con- 

trol   .i .   165 

87.  Errorless  Instructions  on  Measure  of  Damages  Under  Fed- 

eral Act .  •  •  •->  r^^'  •    165 

88.  Erroneous    Instructions    on   Measure   of    Damages    Under 

Federal  Act 170 

89.  Beneficiaries  May  Recover  for  the  Suffering  of  Deceased 

as  WeU  as  for  His  Death .,., . . . .,...   174 

90.  Death  Must  Be  Result  of  Negligence  Before  Beneficiaries 

Can  Recover  Under  Section  1,  but  Not  Under  Section  9.   176 

91.  Loss  of  Prospective  Gifts — Contributions  During  Lifetime 

of  Deceased  Employe 177 

92.  The  Term  ' '  Next  of  Kin ' '  Construed  to  Mean  Illegitimate 

Children — Conflicting  Decisions    180 

93.  Cases  Declaring  the  True   Measure  of  Damages  and  Ap- 

proved by  the  United  States  Supreme  Court 181 

94.  Distribution  of  Amoimt  Recovered  Controlled  by  Federal 

Statute  and  Not  State  Laws 188 

95.  Damages  Due  Each  Beneficiary  Must  Be  Apportioned  in 

the  Verdict   189 


CHAPTER  VI. 
ASSUMPTION  OF  RISK  UNDEK  FEDERAL  ACT. 

96.  The  Statutory  Provision 190 

97.  Assumption  of  Risk  a  Defense  Under  the  Federal  Act...    191 

98.  Doctrine    Applied    as    Defined    in    Decisions    of    National 

Courts   193 

99.  Concrete  Instruction  Must  Be  Given,  If  Requested 197 

100.  When  Assumption  of  Risk  Is  Not  a  Defense — Federal  Safe- 

ty Appliance  Act 197 

101.  When  Assiunption  of  Risk  Is  No  Defense  When  There  Is 

a  Plurality  of  Causes 199 

102.  Violations  of  Rules  Not  Assumption  of  Risk 200 


XIV        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

PAGE. 

§  103.  Distinction  Between  Assumption  of  Risk  and  Contributory 

Negligence  200 

§  104.  Cases  in   Which  Interstate  Employes  Were  Held  Not  to 

Have  Assumed  the  Eisk 201 

§  105.  Cases  in  Which  Interstate  Employes  Were  Held  to  Have 

Assimied  the  Eisk   206 

§  106.  Defense  of  Assumption  of  Eisk  Must  Be  Pleaded  to  Be 

Available    212 

§  107.  Confusing  Assumption  of  Eisk  with  Contributory  Negli- 
gence in  Jury  Instructions  Under  Federal  Act 213 

§  108.  Assumption  of  Eisk  Eliminated  in  Actions  for  Violation 

of  Hours  of  Service  Act 215 

CHAPTER  VII. 
CONTEIBUTOEY  NEGLIGENCE  UNDEE  FEDEEAL  ACT. 

§  109.  The  Statutory  Provision    216 

§  110.  Eight   of   Eecovery   Under   Federal   Act   Not   Barred   by 

Contributory  Negligence 217 

§  111.  When  Contributory  Negligence  of  Employe  Does  Not  Di- 
minish Damages — Federal  Safety  Appliance  Act 218 

§  112.  Contributory  Negligence  Defined   218 

§  113.  How  Damages  Apportioned  When  Employe  Is  Guilty  of 

Contributory   Negligence    219 

§  114.  Apportionment  of  Damages  Under  Federal  Act  Different 

from  Georgia  Statute   220 

§115.  Employe's   Contributory   Negligence   to   Eeduce   Damages 

Must  Proximately  Contribute  to  Injury 220 

§  116.  Gross  Negligence  of  Plaintiff  and  Slight  Negligence  of  De- 
fendant Cannot  Defeat  Eecovery 221 

§  117.  When  Defendant's  Act  Is  No  Part  of  Causation,  Plaintiff 

Cannot  Eecover 222 

§  118.  Erroneous  Instructions  on  Contributory  Negligence  Under 

the  Federal  Act  223 

§  119.  Whether  Contributory  Negligence  Must  Be  Pleaded,  De- 
termined by  State  Law   226 

CHAPTER  VTIL 

CONTRACTS  FORBIDDEN  BY  FEDERAL  ACT. 

§  120.  The  Statutory  Provision    228 

§  121.  Statute   Prohibiting  Carriers  from   Evading  Liability  by 

Contracts   or   Regulations,   Valid 228 


TABLE  OP  CONTENTS  XV 

PAGE. 

§  122.  Statute  Applies  to  Existing  as  Well  as  Future  Contracts. .   229 
§  123.  Acceptance  of  Benefits  from  Employer   No  Bar  to  Suit 

Against  Joint  Tort-Feasor 230 


CHAPTER  IX. 
JURISDICTION  OF  STATE  AND  FEDERAL  COURTS. 

124.  Suits  May  Be  Brought  in  Federal  Courts 232 

125.  Actions  May  Also  Be  Brought  in  State  Courts  Under  Fed- 

eral Act   233 

126.  Causes  Instituted  in  State  Courts  Not  Removable  to  Fed- 

eral Courts 233 

127.  Removability  When  Petition  States  Cause  of  Action  Under 

State  Law  in  One  Count  and  Under  Federal  Law  in  An- 
other Count   234 

!  128.  Action  Removable  When  Petition  Does  Not  State  Cause  of 
Action  Under  Federal  Act  Although  Intended  to  Be 
Under  That  Statute    236 

i  129.  Statute  of  Limitation   237 

t  130.  Judgment  of  Highest  State  Court  in  Action  Under  Federal 
Act  May  Be  Reviewed  by  United  States  Supreme  Court, 
When    238 

!  131.  Record  Must  Show  Right  Under  Federal  Laws  Was  Spe- 
cifically Set  Up  and  Denied  by  State  Court 239 

I  132.  Contention  That  There  Is  or  Is  Not  Sufficient  Evidence  to 

Show  LiabUity,  Will  Support  Writ  of  Error 239 

5  133.  Power  to  Review  Does  Not  Extend  to  Questions  Merely 

Incidental  and  Non-Federal  in  Character 241 

^  134.  Ruling  of  State  Court  That  Federal  Question  Was  Sufficiently 
Raised  Binding  Upon  United  States  Supreme  Court.  .  .  .   242 

§  135.  Federal  Questions  to  Support  Writ  of  Error  to  United 
States  Supreme  Court,  Need  Not  Be  Raised  by  the  Plead- 


ings 


243 


136.  Pleading  Federal  Act  and  Submitting  Case  to  Jury  Under 

State  Law,  No  Denial  of  Federal  Right 244 

137.  When  Petition  Not  Stating  a  Good  Cause  of  Action  Under 

Federal  Act  Raises  a  Federal  Question 245 

138.  Claim  That  Verdict  Is  Excessive  Not  Reviewable  by  Writ 

of  Error  245 


xvi        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

CHAPTER  X. 

PARTIES,  PLAINTIFFS  AND  DEFENDANTS,  IN  STJITS  UNDER 
FEDERAL  ACT. 

PAGE. 

§  139.  Personal  Representative  Only  Can  Bring  Suit  in  Case  of 

Death    246 

§  140.  Widow  Cannot  Maintain  Suit  in  Individual  Capacity  Al- 
though She  May  Be  Sole  Beneficiary 247 

§  141.  Want   of   Legal   Capacity   in   Widow   to    Sue   Cannot  Be 

Waived   248 

§  142,  Ancillary  Administrator  May  Sue  Under  the  Federal  Act.   250 

§  143.  Personal  Representative  Alone  May  Revive  Suit  Commenced 

by  Employe  in  His  Lifetime 251 

§  144.  Existence    of    Other    Property    Not    Necessary   to    Secure 

Appointment  of  Personal  Representative 251 

§  145.  Agents   and   Servants   Whose    Negligence   Caused   Injury, 

Not  Liable  Under  the  Federal  Act 252 

§  146.  Lessor  of  a  Railroad  May  Be  Made  Party  Defendant 252 

§  147.  Personal  Representative  Appointed  in   One  State  Cannot 

Sue  in  Another  State  Without  Consent 253 


CHAPTER  XI. 
PLEADINGS  UNDER  THE  FEDERAL  ACT. 

148.  Plaintiff 's  Petition  Must  Plead  Facts  Showing  That  Injury 

or  Death  Occurred  Under  Conditions  Described  in  Fed- 
eral Act   254 

149.  If  Petition  States  Cause  of  Action  Solely  Under  Federal 

Law,  There  Can  Be  No  Recovery  Under  State  Law — 
Contrary  Rulings   257 

150.  Petition  Stating  a  Cause  of  Action  Under  State  Law,  Re- 

covery Permitted  Under  Federal  Act  When  Omitted 
Allegations  Are  Supplied  by  the  Answer 260 

[  151.  Recovery  Under  Petition  Stating  Cause  of  Action  Under 
State  Law  Though  Evidence  Shows  a  Case  Under  Fed- 
eral Act,  Harmless  Error  on  Appeal,  When 263 

t  152.  Pleading  Cause  of  Action  Under  State  Law  in  One  Count 

and  Under  Federal  Act  in  Another  Count,  Allowed 268 

i  153.  Petition  Need  Not  Specifically  Refer  to  the  Act  If  Facts 

Showing  Liability  Thereunder  Are  Pleaded 270 

(  154.  State  Law  as  to  Sufficiency  of  Pleading  Governs 271 

i  155.  Allegations   as   to   Engagement   in    Interstate   Commerce 

Held  Sufficient   271 


TABLE  OF  CONTENTS  XVU 

PAGE. 

156.  Allegation  to  Show  Cause  of  Action  Under  the  Federal 

Act  Held  Not  Sufficient 273 

157.  In    Cases    of    Death    Petition    Must    Allege    Survival    of 

Beneficiaries  Named  in  Statute 274 

158.  Petition  Must  Allege  Pecuniary  Loss  to  Beneficiaries 275 

159.  In  Suits  Under  State  Laws,  Applicability  of  Federal  Act 

May  Be  Raised  by  Answer 277 

160.  Where  Petition  Is  Under  State  Law  and  Evidence  Shows 

Case  Under  Federal  Statute,  Plaintiff  Cannot  Recover.    277 

161.  Defendant    in    Suit   Under    State   Law    Must    Specifically 

Plead  Federal  Act  to  Defeat  Recovery 280 

162.  When    Amendment    of    Petition    Permissible    After    Two- 

year  Period  of  Limitation 281 

163.  When  Amendments  After  Limitation  Period  Not  Allowed.   285 


CHAPTER  XII. 
EVIDENCE  UNDER  FEDERAL  ACT. 

§  164.  Rules  of  Evidence  Governed  by  State  Law 288 

§  165.  Law  of  Forum  Determines  Whether  Widow  or  Other  Bene- 
ficiaries May  Testify 289 

§  166.  State  Law  Not  Applicable  in  Passing  on  Demurrer  to  the 

Evidence 289 

§  167.  Record  EAddence  of  Interstate  Shipments — Statutory  Pro- 
vision and  Order  of  Interstate  Commerce  Commission.  .   289 

§  168.  Method  of  Proving  When  Train  and  Switching  Crews  Are 

Engaged  in  Interstate  Commerce 290 

§  169.  Method  of  Proving  When  Other  Railroad   Employes  Are 

Engaged  in  Interstate  Commerce 293 

§  170.  Evidence  Held  Sufficient  to  Show  That  Train  Was  Carry- 
ing Interstate  Commerce 293 

§  171.  Evidence  Held  Not  Sufficient  to  Show   That  Train  Was 

Carrying  Interstate  Commerce 295 


CHLAPTER  Xm. 
MATTERS  OF  PRACTICE  UNDER  FEDERAL  ACT. 

172.  At  What  Stage  of  Proceedings,   Motion  to  Elect  Should 

Be  Sustained — Practical  Considerations 300 

173.  Motions  to  Elect  Under  Iowa  Statute  in  Actions  Under 

Federal  Act 302 


XVLH     INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

PAGE. 

§  174.  Instances  Where  Motion  to  Elect  Should  Have  Been  Sus- 
tained Before  Trial 304 

§  175.  Widow  Suing  in  Her  Own  Name  in  One  Suit  and  as  Ad- 
ministratrix in  Another,  Cannot  Be  Compelled  to  Elect.   307 

§  176.  Verdicts  by  Less  Than  Twelve  Jurors,  When  Permissible 
Under  State  Law,  Valid  in  Actions  Under  Federal 
Statute   312 

§  177.  When  Suit  Under  State  Law  Is  Res  Adjudicata 314 

§  178.  Errors  in  Actions  Under  Federal  Act  Held  Harmless  on 

Appeal    317 

§  179.  Plaintiflf   in   Actions   Under   Federal   Act   May   Sue   as   a 

Poor  Person  in  United  States  Courts,  When 318 


APPENDIX. 

A.  Federal  Employers '  Liability  Act  of  1906 321 

B.  Federal  Employers'  Liability  Act  of  1908 323 

C.  Federal  Employers'  Liability  Act,  Amendments  of  1910 326 

D.  Eeport  of  Judiciary  Committee  of  House  on  Federal  Employ- 

ers '  Liability  Act  of  1908 328 

E.  Eeport  of  Judiciary  Committee  of  House  on  Amendments  of 

1910  to  Federal  Employer's  Liability  Act  of  1908 342 

F.  Eeport   of   Judiciary   Committee   of   Senate   on   Amendments 

of  1910  to  Federal  Employers'  Liability  Act  of  1908 348 

Amendment  as  to  Jurisdiction — Place  Where  Suit  May 

Be  Brought 352 

G.  Federal  Locomotive  Ash  Pan  Act 374 

H.  Federal  Hours  of  Service  Act 376 

I.    Federal  Boiler  Inspection  Act 379 

J.    Federal  Safety  Appliance  Acts 386 

Amendment  of  1903  to  Federal  Safety  Appliance  Act  of 

1893    388 

Amendment  of  1910  to  Federal  Safety  Appliance  Act  of 

1893   390 

K.  Order  of  the  Interstate  Commerce  Commission  Fixing  Mini- 
mum Percentage  of  Power  Brakes 394 

L.    Order  of  the  Interstate  Commerce  Commission  Fixing  Stand- 
ard Height  of  Draw  Bars 395 

M.  Order   of   the   Interstate   Commerce   Commission   Eelative   to 

Safety  Appliances   397 

Box  and  Other  House  Cars 398 

Hopper  Cars  and  High- Side  Gondolas  with  Fixed  Ends.   407 
Drop-End  High-Side  Gondola  Cars 409 


TABLE  OF  CONTENTS  XIX 

PAGE. 

Fixed-End  Low-Side  Gondola  and  Low-Side  Hopper  Cars.  410 

Drop-End  Low-Side  Gondola  Cars 412 

Flat  Cars 414 

Tank-Cars  with  Side-Platforms   415 

Tank  Cars  Without  Side-Sills  and  Tank  Cars  with  Short 

Side-SiUs   and   End-Platforms 417 

Tank  Cars  Without  End-Sills 421 

Caboose  Cars  with  Platforms 424 

Caboose  Cars  Without  Platforms 428 

Passenger-Train  Cars  with  Wide  Vestibules 432 

Passenger-Train  Cars  with  Open  End-Platforms 433 

Passenger-Train  Cars  Without  End-Platforms 435 

Steam  Locomotives  Used  in  Road  Service 438 

Steam  Locomotives  Used  in  Switching  Service 441 

Specifications  Common  to  All  Steam  Locomotives 444 

N.   Order  of  the  Interstate  Commerce  Commission  Extending  Time 

for  Compliance  with  Order  Relating  to  Safety  Appliances . .  447 

O.  Boiler  Inspection — Amendatory  Act 450 


TABLE  OF  CASES 


[references  are  to  pages] 
Addyston  Pipe  &  Steel  Co.  v.  United  States,  175  U.  S.  211,  228, 

44  L.  Ed.  136 23b 

Alexander  v.  Pennsylvania  E.  Co.,  48  Ohio  St.  623 35 

Allen  V.  Eailway,  45  Md.  41 35 

Allen  V.  Tuscarora  V.  E.  Co.,  229  Pa.  97,  30  L.  E.  A.   (N.  S.) 

1096n,  140  Am.  St.  Eep.  714 287 

American  Pub.  Co.  v.  Fisher,  166  U.  S.  464,  41  L.  Ed.  1079 312 

American  E.  Co.  v.  Birch,  224  U.  S.  547,  56  L.  Ed.  879,  5  Porto 

Eico  Fed.  Eep.  273 12,  150,  247,  281 

American  E.  Co.  v.  Didricksen,  227  U.  S.  145,  57  L.  Ed.  456,  3  N.  C. 

C.  A.  809n,  831n 149,  152,  179,  247 

Anderson  v.  Chicago,  B.  &  Q.  E.  Co.,  35  Neb.  95 178 

Anderson  v.  Louisville  &  N.  E.  Co.,  127  C.  C.  A.  277,  210  Fed. 

689,  6  N.  C.  C.  A.  439n 251 

Armbruster  v.  Chicago,  E.  I.  &  P.  Ey.  Co.,  —  Iowa  — ,  6  N.  C.  C.  A. 

195n,  147  N.  W.  337 16,  97,  307 

Armour  Packing  Co.  v.  United  States,  209  U.  S.  56,  52  L.  Ed.  681.  230 

Atchison,  T.  &  S.  F.  E.  Co.  v.  Brown,  26  Kans.  443 178 

Atchison,  T.  &  S.  F.  E.  Co.  v.  Fajardo,  74  Kans.  314,  6  L.  E.  A. 

(N.  S.)  681n 161 

Atchison,  T.  &  S.  F.  E.  Co.  v.  Mills,  49  Tex.  Civ.  App.  349 5,  144 

Atchison,  T.  &  S.  F.  E.  Co.  v.  Pitts,  —  Okla.  — ,  145  Pac.  1148 ...   120 
Atchison,  T.  &  S.  F.  E.  Co.  v.  Tack,  —  Tex.  Civ.  App.  — ,  130  S.  W. 

596   217 

Atchison,  T.  &  S.  F.  E.  Co.  v.  Victoria,  F.  &  W.  E.  Co.,  234  U.  S. 

1,  58  L.  Ed.  1185 124 

Atchison,  T.  &  S.  F.  E.  Co.  v.  Wilson,  1  C.  C.  A.  25,  48  Fed.  57. .   182 
Atkinson  v.  BuUard,  —  Ga.  App.  — ,  6  N.  C.  C.  A.  80n,  183n,  80 

S.  E.  220 16,  119,  269,  302 

Atlanta,  K.  &  N.  E.  Co.  v.  Smith,  1  Ga.  App.  162 282 

Atlantic  C.  L.  E.  Co.  v.  Jones,  9  Ala.  App,  499,  6  N.  C.  C.  A. 

26n,  80n,  192n 110,  255 

Atlantic  C.  L.  E.  Co.  v.  Eeaves,  125  C.  C.  A.  599,  208  Fed.  141 256 

Atlantic  C.  L.  E.  Co.  v.  Eiverside  Mills,  219  U.  S.  186,  55  L.  Ed. 

167,  31  L.  E.  A.   (N.  S.)  7n 230 

Atlantic  C.  L.  E.  Co.  v.  United  States,  94  C.  C.  A.  35,  168  Fed. 

175   47 

Atteberry  v.  PoweU,  29  Mo.  429,  77  Am.  Dec.  579 226 


XXU       INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

[keferences  are  to  pages] 
Baer  Bros.  Mer.  Co.  v.  Denver  &  E.  G.  E.  Co.,  233  U.  S.  479,  58 

L.  Ed.  1055 138,  142 

Baltimore  &  O.  Ey.  Co.  v.  Darr,  124  C.  C,  A.  565,  204  Fed.  751, 

6  N.  C.  C.  A.  203n,  197  Fed.  665 78 

Baltimore  &  O.  E.  Co.  v.  Evans,  110  C.  C.  A.  156,  188  Fed.  6 253 

Baltimore  &  O.  E.  Co.  v.  Gawinske,  116  C.  C.  A.  579,  197  Fed.  31.  229 

Baltimore  &  O.  E.  Co.  v.  Whitacre,  —  Md.  — ,  92  Atl.  1060 95 

Bank  of  Garrison  v.  MaUey,  103  Tex.  562 34 

Bankson  v.  Illinois  C.  E.  Co.,  196  Fed.  171 16,  269,  303 

Barker  v.  Kansas  City,  M.  &  O.  Ey.  Co.,  88  Kans.  767,  43  L.  E.  A. 

(N.  S.)  1121 96,  133,  192,  213,  296,  297 

Barlow  v.  Lehigh  V.  E.  Co.,  158  App.  Div.  (N.  Y.)  768,  6  N.  C. 

C.  A.  191n 87,  96 

Barron  v.  Baltimore,  7  Pet.  (U.  S.)  243,  8  L.  Ed.  464 313 

Bay  V.  Merrill  &  Eing  Lumber  Co.,  211  Fed.  717 123,  124 

Beck  V.  Dowell,  40  Mo.  App.  71 226 

Beckman  Lumber  Co.  v.  Acme  Harvester  Co.,  215  Mo.  221 34 

Behrens  v.  lUinois  C.  E.  Co.,  192  Fed.  581,  3  N.  C.  C.  A.  781n,  783.  116 

Bennett  v.  Lehigh  V.  E.  Co.,  197  Fed.  578 103 

Bitondo  v.  New  York,  C.  &  H.  E.  Co.,  163  App.  Div.  (N.  Y.)  823, 

6  N.  C.  C.  A.  230n 158,  281 

BLxler  v.  Pennsylvania  E.  Co.,  201  Fed.  553 282 

Black  v.  Jackson,  177  U.  S.  349,  44  L.  Ed.  801 312 

Blake  v.  Midland  Ey.  Co.,  18  Q.  B.  (Eng.)  93,  109 182 

Blizzard  v.  Applegate,  61  Ind.  368 226 

Board  of  Trustees  v.  Cuppett,  52  Ohio  St.  567 34 

Boldt  V.  New  York,  C.  E.  Co.,  18  N.  Y.  432 102 

Bombolis  v.  Minneapolis  &  St.  L.  E.  Co.,  —  Minn.  — ,  150  N.  W. 

385   57,  161 

Bouchard  v.  Central    V.  E.  Co.,  87  Vt.  399,  6  N.  C.  C.  A.  78n, 

81n    16,  269 

Bower  v.  Chicago  &  N.  W.  R.  Co.,  —  Nebr.  — ,  6  N.  C.  C.  A.  213n, 

148  N.  W.  145 58,  99,  191,  294 

Bowers  v.  Southern  Ey.  Co.,  10  Ga.  App.  367,  1  N.  C.  C.  A. 

841n    31 

Bradbury  v.  Chicago,  E.  I.  &  P.  Ey.  Co.,  149  Iowa  51,  40  L.  E.  A. 

(N.  S.)   684n 81,  116,  277,  281 

Bramlett  v.  Southern  Ey.  Co.,  —  S.  C.  — ,  6  N.  C.  C.  A.  75n,  83n, 

82   S.   E.   501 98 

Brewster  v.  Chicago  &  N.  "W.  Ey.  Co.,  114  Iowa  144,  89  Am.  St. 

Eep.  348 35 


TABLE  OF  CASES  XXlll 

[references  are  to  pages] 
Brmkmeier  v.  Missouri  P.  Ey  Co.,  224  U.  S.  268,  56  L.  Ed.  758, 

3  N.  C.  C.  A.  795,  81  Kans.  101 16,  47,  256 

Brooks  V.  Southern  P.  Co.,  148  Fed.  986 4 

Burnett  v.  Atlantic  C.  L.  E.  Co.,  163  N.  C.  186,  6  N.  C.  C.  A.  103, 

104n   16,  228,  238 

Cain  V.  Southern  Ey.  Co.,  199  Fed.  211 218 

Campbell  v.  Canadian  N.  Ey.  Co.,  —  Minn.  — ,  4  N.  C.  C.  A.  216n, 

217n,   144  N.  Y.   772 127 

Capital  Trust  Co.  v.  Great  Northern  Ey.  Co.,  —  Minn.  — ,  149  N. 

W.  14   164 

Carolina,  C.  &  0.  Ey.  Co.  v.  Shewalter,  128  Tenn.  363,  6  N.  C.  C. 

A.  445n 164 

Carr  v.  New  York,  etc.  E.  Co.,  77  Misc.  (N.  Y)  346 91 

Carter  v.  Kansas  City  S.  Ey.  Co.,  —  Tex.  Civ.  App.  — ,  4  N.  C. 

C.  A.  634n,  155  S.  W.  638  200,  206 

Central  V.  E.  Co.  v.  Bethune,  124  C.  C.  A.  528,  206  Fed.  868.  .192,  213 

Chaflin  v.  Houseman,  93  U.  S.  130,  23  L.  Ed.  833 314 

Chambers  v.  Baltimore  &  O.  E.  Co.,  207  U.  S.  142,  52  L.  Ed.  143. .   239 

Chandler  v.  St.  Louis  &  S.  E.  E.  Co.,  127  Mo.  App.  34 35 

Charleston  &  W.  C.  E.  Co.  v.  Anchors,  10  Ga.  329 94,  111 

Charleston  &  W.  C.  E.  Co.  v.  Brown,  13  Ga.  App.  744,  79  S.  E. 

932   15,  20,  38,  54,  217 

Cherokee  &  P.  Coal  &  Min.  Co.  v.  Limb,  47  Kan.  469 178 

Chesapeake  &  O.  Ey.  Co.  v.  Dwyer's  Adm'x,  157  Ky.  590,  6  N.  C. 

C.  A.  449n 149,  151,  275 

Chesapeake  &  O.  Ey.  Co.  v.  Kelly 's  Adm  'x,  —  Ky,  — ,  171  S,  W, 

185     271,  313 

Chesapeake  &  O.  Ey.  Co.  v.  Proffit,  218  Fed.  (C.  C.  A.)  23 205 

Chesapeake  &  O.  Ey.  Co.  v.  Walker's  Adm'x,  159  Ky.  237 192 

Chicago  &  A.  Ey.  Co.  v.  Shannon,  43  111.  338 178 

Chicago  &  N.  W,  E.  Co.  v,  O'Brien,  67  C.  C.  A.  421,  132  Fed. 

593    49 

Chicago,  B.  &  Q.  E.  Co.  v.  McGuire,  219  U.  S.  549,  55  L.  Ed. 

328    229 

Chicago,  B.  &  Q.  E.  Co.  v.  United  States,  220  U.  S.  559,  55  L. 

Ed.  582 47 

Chicago,  M.  &  St.  P.  Ey.  Co.  v.  Iowa,  233  U.  S.  334,  58  L.  Ed. 

988    141 

Chicago,  E.  I.  &  P.  Ey.  Co.  v.  Brown,  229  U.  S.  317,  57  L.  Ed. 

1204,  3  N.  C.  C.  A.  826,  107  C.  C.  A.  300,  185  Fed.  80,  183 

Fed.  80  48 

Chicago,  E.  I.  &  P.  E.  Co.  v.  Hardwick  Farmers'  Elevator  Co., 

226  U.  S.  426,  57  L.  Ed.  284,  46  L.  E.  A.  (N.  S.)  203 134 


XXIV     INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

[refekences  are  to  pages] 
Chicago,  R.  I.  &  P.  Ry.  Co.  v.  McBee,  —  Okla.  — ,   145  Pac. 

331 81,  116,  255,  256,  281,  298 

Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Rogers,  —  Tex.  Civ.  App.  — ,  150 

S.  W.  281    281 

Choctaw,  Etc.  Ry.  Co.  v.  Hoolaway,  191  U.  S.  334,  48  L.  Ed.  207. .     31 
Choctaw,  O.  &  G.  R.  Co.  v.  McEade,  191  U.  S.  64,  48  L.  Ed.  96, 

15  Am.  Neg.  Rep.  280 193,  204,  213 

Cincinnati,  N.  O.  &  T.  P.  Ry.  Co.  v.  Bonham,  —  Tenn.  — ,  171 

S.  W.  71 248,  249,  281 

Cincinnati,  N.  O.  &  T.  P.  Ry.  Co.  v.  Goode,  155  Ky.  153,  173  S.  W. 

329  70,  282,  283 

Cincinnati,  N.  O.  &  T.  P.  Ry.  Co.  v.  Hill,  —  Ky.  — ,  170  S.  W. 

599   65 

Cincinnati,  N.  O.  &  T.  P.  Ry.  Co.  v.  Slade,  216  U.  S.  78,  54  L.  Ed. 

390    239 

Cincinnati,  N.  O.  &  T.  P.  Ry.  Co.  v.  Wheeler,  —  Ky.  — ,  169  S.  W. 

690   62 

Cincinnati,  N.  O.  &  T.  P.  Ry  Co.  v.  Wilson 's  Adm  'r,  157  Ky.  460, 

171  S.  W.  430 24,  181 

Clark  V.  Southern  P.  Co.,  175  Fed.  122 271 

Coe  V.  Errol,  116  U.  S.  517,  525,  29  L.  Ed.  715 124 

Colasurdo  v.  Central  R.  Co.  of  New  Jersey,  180  Fed.   832,  113 

C.  C.  A.  379,  192  Fed.  901.  .45,  46,  56,  93,  113,  117,  126,  206,  217 

Collins  V.  Pennsylvania  R.  Co.,  148  N.  Y.  Supp.  777 189 

Colorado,  C.  &  I.  Co.  v.  Lamb,  6  Colo.  App.  255 178 

Copper  River  &  N.  W.  Ry.  Co.  v.  Heney,  211  Fed.    (C.  C.  A.) 

459    55,  127 

Corbett  v.  Boston  &  M.  R,  R.,  —  Mass.  — ,  107  N.  E.  60 308,  311 

Cound  V.  Atchison,  T.  &  S.  F.  Ry.  Co.,  173  Fed.  527 271 

Cousins  V.  Illinois  C.  R.  Co.,  —  Minn.  — ,  6  N-.  C.  C.  A.  182,  148 

N.  W.  58 110 

Crandall  v.  Chicago  &  G.  W.  R.  Co.,  —  Minn.  — ,  150  N.  W. 

165     295 

CresweU  v.  Grand  Lodge,  K.  P.,  225  U.  S.  246,  56  L.  Ed.  1074 241 

Creteau  v.  Chicago  &  N.  W.  Ry.  Co.,  113  Minn.  418 257 

Daniel  Ball  Case,  10  Wall.  (U.  S.)  557,  19  L.  Ed.  999 124 

Davidson  v.  New  Orleans,  96  U.  S.  97,  24  L.  Ed.  616 313 

Davis  V.  Guarnieri,  45  Ohio  St.  470,  4  Am.  St.  Rep.  554 182 

Deal  V.  Coal  &  Coke  Ry.  Co.,  215  Fed.  285 110 

Deardorff  v.  Chicago,  B.  &  Q.  R.  Co.,  —  Mo.  — ,  172  S.  W.  333.  .   136 

DeAtley  v.  Chesapeake  &  O.  Ry.  Co.,  201  Fed.  591 12,  19,     43 

Delevan  v.  Bates,  1  Mich.  97 226,  234 

Delk  V.  St.  Louis  &  S.  F.  R.  Co.,  220  U.  S.  580,  55  L.  Ed.  590, 

4  N.  C.  C.  A.  488n 134 


TABLE  OF  CASES  XXV 

[references  are  to  pages] 
Deni  v.  Pennsylvania  E.  Co.,  181  Pa.  525,  59  Am.  St.  Rep.  676.  . .    161 
Devine  v.  Chicago,  E.  I.  &  P.  R.  Co.,  —  lU.  — ,  107  N.  E.  595..  165,  291 

Dewberry  v.  Southern  E.  Co.,  175  Fed.  307 347 

Dickinson  v.  West  End  St.  E.  Co.,  177  Mass.  365,  52  L.  E.  A. 

110    24 

Diebold  v.  Sharpe,  19  Ind.  App.  474 178 

Dillon  V.  Great  N.  Ey.  Co.,  38  Mont.  485 164 

Dishon  v.  Cincinnati,  N.  O.  &  T.  P.  Ey.  Co.,  126  Fed.  (C.  C.  A.) 

194    101 

Dollon  V.  S.  E.  Ey.  Co.,  4  C.  B.  N.  S.  (Eng.)  303 179 

Dooley  v.  Seaboard  A.  L.  Ey.  Co.,  163  N.  C.  454,  6  N.  C.  C.  A. 

440n,  442n,  45 2n 35,  149,  151,  153,  165,  174,  179 

Dungan  v.  St.  Louis  &  S.  F.  R.  Co.,  178  Mo.  App.  164,  6  N.  C.  C. 

A.  438,  439n 248,  281 

Eastern  Ey.  Co.  of  New  Mexico  v.  Ellis,  —  Tex.  Civ.  App.  — , 

153  S.  W.  701 247,  252 

Eau  Claire  Nat.  Bank  v.  Jackman,  204  U.  S.  522,  51  L.  Ed.  596 .  .   242 

Edwards  v.  Elliott,  21  Wall.  (U.  S.)  532,  557,  22  L.  Ed.  487 313 

Eilis  V.  Louisville,  H.  &  St.  L.  Ey.  Co.,  155  Ky.  745,  6  N.  C.  C.  A. 

103n,  543n  33,  218,  222 

El  Paso  &  N.  E.  R.  Co.  v.  Gutierrez,  215  U.  S.  87,  54  L.  Ed.  106, 

102  Tex.  378 5,  17,  144,  239 

EiweU  V.  Hicks,  180  111.  App.  554 34 

Emanuel  v.  Georgia  &  F.  Ry.  Co.,  —  Ga.  — ,  83  S.  E.  230 194 

Eng  V.  Southern  P.  Ry.  Co.,  210  Fed.  92,  6  N.  C.  C.  A.  78n,  79n, 

200n   106,  234 

Erie  R.  Co.  v.  Welsh,  —  Ohio  St.  — ,  6  N.  C.  C.  A.  77n,  188n,  105 

N.  E.  190 81,  116,  277,  281 

Evans  v.  Detroit,  G.  H.  &  M.  Ry.  Co.,  —  Mich.  — ,  148  N.  W.  490     58 
Ewald  v.  Chicago  &  N.  W.  E.  Co.,  70  Wis.  420,  5  Am.  St.  Eep.  178.    102 

Ex  Parte  Atlantic  C.  L.  R.  Co.,  —  Ala.  — ,  67  So.  256 24,  255 

Farley  v.  New  York,  N.  H.  &  H.  R.  Co.,  87  Conn.  328,  6  N.  C.  C. 

A.  444n,  445n,  448n,  452n 192,  207 

Ferebee  v.  Norfolk  S.  Ry.  Co.,  —  N.  C.  — ,  4  N.  C.  C.  A.  220n, 

79  S.  E.  685 53 

Fernette  v.  Pere  Marquette  R.  Co.,  175  Mich.  653,  6  N.  C.  C.  A. 

231n,  144  N.  W.  834 68,  256,  264 

First  Employers'  Liability  Cases,  207  U.  S.  463,  52  L.  Ed.  297 

4,   68,   85 

First  National  Bank  v.  Turner,  154  Ind.  497 34 

Fish  V.  Chicago,  R.  I.  &  P.  Ry.  Co.,  —  Mo.  — ,  172  S.  W.  340. .  16,  193 

Flanders  v.  Georgia  and  F.  Ry.  Co.,  —  Fla.  —,  67  So.  68 12 

Reming  v,  Norfolk  S.  Ry.  Co.,  160  N.  C.  196,  6  N.  C.  C.  A.  78n, 

229n   16,  218,  227,  271,  277,  281 


XXVI      INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

[references  are  to  pages] 
Fletcher  v.  Baltimore  &  O.  E.  Co.,  168  U.  S.  135,  42  L.  Ed.  411, 

6  App.  Cas.  (D.  C.)  385 103 

Fogerty  v.  Northern  P.,  —  Wash.  — ,  133  Pac.  609.  .160,  173,  189,  218 
Fordyse  v.  McCants,  51  Ark.  509,  4  L.  E.  A.  296,  14  Am.  St.  Eep. 

69 178 

Fort  Worth  &  D.  C.  Ey.  Co.  v.  Copeland,  —  Tex.  Civ.  App.  — ,  6  N. 

C.  C.  A.  93n,  164  S.  W.  857 192 

Fort  Worth  &  D.  C.  Ey.  Co.  v.  Staleup,  —  Tex.  Civ.  App.  — ,  167 

S.  W.  279 56,  256,  272 

Fort  Worth  B.  Ey.  Co.  v.  Ferryman,  —  Tex.  Civ.  App.  — ,  6  N.  C. 

C.  A,  204n,  158  S.  W.  1181 124 

Franklin  v.  S.  E.  E.  Co.,  4  Hurl.  &  N.  (Eng.)  511 179 

Freeman  v.  Powell,  —  Tex.  Civ.  App.  — ,  144  S.  W.  1033.  .95,  193,  213 

Fritz  V.  Western  U.  T.  Co.,  25  Utah  263 178 

Fulgham  v.  Midland  V.  E.  Co.,  167  Fed.  660 11,  251 

Gaar,  S.  &  Co.  v.  Shannon,  223  U.  S.  468,  56  L.  Ed.  510 239 

Gaines  v.  Detroit,  G.  H.  &  M.  Ey.  Co.,  —  Mich.  — ,  6  N.  C.  C.  A. 

202n,  148  N.  W.  397 80,  255,  256,  257,  278 

Galveston,  H.  &  S.  A.  Ey.  v.  Chojnacky,  —  Tex.  Civ.  App.  — ,  163 

S.  W.   1011 110 

Garrett  v.  Louisville  &  N.  E.  Co.,  —  U.  S.  — ,  35  Sup.  Ct.  32,  117 

C.  C.  A.  109,  197  Fed.  715,  3  N.  C.  C.  A.  769,  4  N.  C.  C.  A. 

925n 147,  151,  157,  163,  270,  275 

Gee  V.  Lehigh  V.  E.  Co.,  148  N.  Y.  Supp.  882 12 

Gibson  v.  Billingham  &  N.  Ey.  Co.,  213  Fed.  488 17,  271,  313 

Gibson  etc.  E.  Co.  v.  Sharpe,  50  Colo.  321 178 

GUa  V.  G.  &  N.  E.  Co.  v.  HaU,  232  U.  S.  94,  58  L.  Ed.  521,  1  N.  C. 

C.  A.  362,  4  N.  C.  C.  A.  231n 193,  197,  203,  205 

Gilmore  v.  Sapp,  100  HI.  297 34 

Glenn  v.  Cincinnati,  N.  O.  &  T.  P.  Ey.  Co.,  157  Ky.  453.  .192,  193,  211 

Goen  V.  Baltimore  &  O.  S.  W.  E.  Co.,  179  111.  App.  566 148 

Grand  T.  W.  Ey.  Co.  v.  Lindsay,  233  U.  S.  42,  58  L.  Ed.  838,  6  N. 

C.  C.  A.  90,  91n,  Ann.  Cas.  1914C  168n.  .32,  217,  218,  222,  270,  272 

Granger  v.  Pennsylvania  E.  Co.,  —  N.  J.  — ,  86  Atl.  264 45,  112 

Gray  v.  Chicago  &  N.  W.  Ey.  Co.,  153  Wis.  636,  4  N.  C.  C.  A. 

225n    102,  112,     281 

Gray  v.  Louisville  &  N.  E.  Co.,  197  Fed.  874,  4  N.  C.  C.  A.  484n.  .    123 

Gray  v.  Southern  Ey.  Co.,  —  N.  C.  — ,  83  S.  E.  489 35 

Greenwood  v.  King,  82  Nebr.  17 178 

Grober  v.  Duluth,  S.  S.  &  A.  Ey.  Co.,  —  Wis.  — ,  150  N,  W.  489.  .      25 
Grow  V.  Oregon  S.  L.  E.  Co.,  —  Utah  — ,  138  Pac.  398,  6  N.  C.  C. 

A.  83n,  199n 99,  104,  107 

Guana  v.  Southern  P.  Co.,  —  Ariz,  — ,  6  N.  C.  C.  A.  96n,  139  Pac. 

782    192 


TABLE  OF  CASES  XXVll 

[references  are  to  pages] 
Gulf,  C.  &  S.  F.  Ey.  Co.  v.  Biezley,  —  Tex.  Civ.  App.  — ,  153  S. 

W.  651   252 

Gulf,  C.  &  S.  F.  Ky.  Co.  v.  Lester,  —  Tex.  Civ.  App.  — ,  149  S. 

W.  841    247 

Gulf,  C.  &  S.  F.  Ey.  Co.  v.  McGinnis,  228  U.  S.  173,  57  L.  Ed.  785, 

3  N.  C.  C.  A.  806,  4  N.  C.  C.  A.  926n,  —  Tex.  Civ.  App.  — , 

147  S.  W.  1188 12,  149,  152,  153,  179,  189,  213,  274,  275 

Gulf,  C.  &  S.  F.  Ey.  Co.  v.  Texas,  204  U.  S.  403,  51  L.  Ed.  540. .  .   139 

Hackett  v.  Chicago,  I.  &  L.  E.  Co.,  170  111.  App.  140 272 

Halestine  v.  Central  Nat.  Bank,  155  Mo.  66 34 

Hall  V.  Hall,  41  Wash.  186 34 

Hall  V.  Louisville  &  N.  E.  Co.,  157  Fed.  464,  98  C.  C.  A.  664,  174 

Fed.  1021  285 

Hall  V.  Southern  E.  Co.,  146  N.  C.  345 253 

HaU  V.  Vandalia  E.  Co.,  169  lU.  App.  12 88,  172 

Hamilton    v.  Kansas  City  S.  E.  Co.,  123  Mo.  App.  619 49 

Hanley  v.  Kansas  City  S.  E.  Co.,  187  U.  S.  617,  47  L.  Ed.  333.  .  .    136 
Hardwick  v.  Wabash  E.  Co.,  181  Mo.  App.  156 

15,  35,  53,  93,  165,  188,  317 

Hearst  v.  St.  Louis  I.  M.  &  S.  Ey.  Co.,  —  Mo.  App.  — ,  173  S. 

W.  86 69,  247 

Heimbach  v.  Lehigh  V.  E.  Co.,  197  Fed.  579 81 

Helm  V.  Cincinnati,  N.  O.  &  T.  P.  Ey.  Co.,  156  Ky.  240,  6  N.  C. 

C.  A.  83n,  84n 20,  24,  35,  192,  209 

Hench  v.  Pennsylvania  E.  Co.,  —  Pa.  — ,  91  Atl.  1056 69,  299 

Hillebrand  v.  Standard  Biscuit  Co.,  139  Cal.  233 178 

Hobbs  v.  Great  N.  Ey.  Co.,  —  Wash.  — ,  142  Pac.  20,  6  N.  C.  C.  A. 

84n,  90n   24 

Hogarty  v.  Philadelphia  E.  Ey.  Co.,  245  Pa.  443 229,  264 

Holmes  v.  Pennsylvania  E.  Co.,  220  Pa.  189,  123  Am.  St.  Eep.  685.   178 
Hopper  V.  Denver  &  E.  G.  E.  Co.,  84  C.  C.  A.  21,  155  Fed.  273, 

6  N.  C.  C.  A.  442n 178,  179 

Horton  v.  Oregon,  W.  E.  &  N.  Co.,  72  Wash.  503,  3  N.  C.  C.  A. 

784,  47  L.  E.  A.  (N.  S.)  8n 15,     95 

Horton  v.  Seaboard  A.  L.  Ey.  Co.,  157  N.  C.  146 221 

Houston  &  T.  C.  Ey.  Co.  v.  Cowser,  57  Tex.  293 178 

Howard  v.  Illinois  C.  Ey.  Co.,  148  Fed.  997 4 

Hoxie  V.  New  York,  N.  H.  &  H.  E.  Co.,  82  Conn.  352,  17  Ann. 

Cas.   324    11,  233 

Hudkins  v.  Bush,  69  W.  Va.  194,  Ann.  Cas.  1913A  533n 126 

Hulac  V.  Chicago  &  N.  W.  E.  Co.,  194  Fed.  747 234 

Hurst  V.  Chicago,  E.  I.  &  P.  E.  Co.,  49  Iowa  76 24 

Hurst  V.  Detroit  City  Ey.  Co.,  84  Mich.  539,  545,  3  N.  C.  C.  A.  778.   182 
Huxtado  V.  California,  110  U.  S.  517,  28  L.  Ed.  232 313 


XXVIU  INJURIES  TO  INTERSTATE  EINTPLOYES  ON  RAILROADS 

[references  are  to  pages] 
Illinois  C.  E.  Co.  v.  Barron,  5  Wall.  (U.  S.)  90,  105,  106,  18  L.  Ed. 

591    182 

Illinois  C.  E.  Co.  v.  Behrens,  233  U.  S.  473,  58  L.  Ed.  1051,  6.  N. 

C.  C.  A.  189n,  Ann.  Cas.  1914C  163n 71,  83,  85,  88,  111,  115 

Illinois  C.  E.  Co.  v.  Doherty's  Adm'r,  153  Ky.  363,  6  N.  C.  C.  A. 

75n,  440n,  444n,  47  L.  E.  A.  (N.  S.)  31n 

12,  146,  149,  153,  158,  275 

Illinois  C.  E.  Co.  v.  Kentucky,  218  U.  S.  551,  54  L.  Ed.  1147 239 

Illinois  C.  E.  Co.  v.  Nelson,  212  Fed.  (C.  C.  A.)  69 265 

Illinois  C.  E.  Co.  v.  Nelson,  203  Fed.  956,  122  C.  C.  A.  258 97,  281 

Illinois  C.  E.  Co.  v.  Porter,  207  Fed.  311,  6  N.  C.  C.  A.  98n,  205n 

97,  221,  275 

Interstate  Commerce  Commission  v.  Cincinnati,  N.  O.  &  T.  P.  Ey. 

Co.,  162  U.  S.  184,  40  L.  Ed.  935 135 

Irvin  V.  Southern  Ey.  Co.,  —  N.  C.  — ,  80  S.  E.  78 157,  165,  289 

•Jackson  v.  Chicago,  St.  P.  &  M.  E.  Co.,  210  Fed.  495,  6  N.  C.  C. 

A.  200n 104 

Jackson,  etc..  Iron  Works  v.  Hurlbut,  158  N.  Y.  34,  70  Am.  St. 

Eep.  432  124 

Johnson  v.  Great  N.  E.  Co.,  102  C.  C.  A.  89,  178  Fed.  643,  1  N.  C. 

C.  A.  853n,  861n 80 

Johnson  v.  Southern  P.  Co.,  196  U.  S.  1,  49  L.  Ed.  363,  3  N.  C. 

C.  A.  784,  802n,  829n 135 

Jones  V.  Charleston  &  W.  C.  Ey.  Co.,  —  S.  C.  — ,  6  K  C.  C.  A. 

439n,  443n,  82  S.  E.  415 157 

Jones  V.  Chesapeake  &  O.  Ey.  Co.,  149  Ky.  566 93,  257 

Kansas  City  S.  E.  Co.  v.  C.  H.  Albers  Commission  Co.,  223  U.  S. 

573,  56  L.  Ed.  556 239,  241 

Kansas  City  S.  E.  Co.  v.  Cook,  100  Ark.  467 133,  234,  270,  271 

Kansas  City  S.  E.  Co.  v.  Leslie,  —  Ark.  — ,  6  N.  C.  C.  A.  446n, 

447n,  453n,  454n,  167  S.  W.  92 17,  288 

Kelly  V.  Chesapeake  &  0.  E.  Co.,  201  Fed.  602 234,  252,  270 

KeUy  V.  Great  Northern  Ey.,  152  Fed.  211 4 

Kellyville  Coal  Co.  v.  Petraytis,  195  111.  215,  88  Am.  St.  Eep.  193.    161 

Kennard  v.  Louisiana,  92  U.  S.  480,  23  L.  Ed.  478 313 

Kenney  v.  Seaboard  A.  L.  Ey.  Co.,  —  N.  C.  — ,  82  S.  E.  968 180 

Knowles  v.  New  York,  N.  H.  &  H.  E.  Co.,  150  N.  Y.  Supp.  99 83 

Koeeher  v.  Minneapolis,  St.  P.  &  S.  S.  M.  Ey.  Co.,  122  Minn.  458 .      35 
La  Casse  v.  New  Orleans,  T.  &  M.  E.  Co.,  —  La.  — ,  6  N.  C.  C.  A. 

196n,  437n,  64  So.  1012 81,  114,  249,  281 

LaMere  v.  Eailway  T.  Co.,  125  Minn.  526,  6  N.  C.  C.  A.  97n,  lOOn.      56 
Lamphere  v.  Oregon,  E.  &  N.  Co.,  116  C.  C.  A.  156,  196  Fed.  336, 

6  N.  C.  C.  A.  187n,  47  L.  E.  A.  (N.  S.)  In 101,  103 

Lauer  v.  Northern  P.  Ey.  Co.,  —  Wash.  — ,  145  Pac.  606 15 


TABLE  OF  CASES  XXIX 

[references  are  to  pages] 
Law  V.  Illinois  C.  E.  Co.,  126  C.  C,  A.  27,  208  Fed.  869,  6  N.  C.  C. 

A.   103n,   201n 79,     85 

Lehigh  Iron  Co.  v.  Eupp,  100  Pa.  95 178 

Lett  V.  Eailway,  11  Ont.  App.  (Can.)  1 182 

Lloyd  V.  Southern  Ey.  Co.,  —  N.  C.  — ,  6  N.  C.  C.  A.  190n,  81  S.  E. 

1003   97,  212 

Long  V.  Southern  Ey.  Co.,  —  Ky.  — ,  159  S.  W.  779 20,     63 

Louisville  &  N.  E.  Co.  v.  Allen,  152  Ky.  145,  152  Ky.  837 134,  136 

LouisvUle  &  N.  E.  Co.  v.  Heinig,  —  Ky.  — ,  171  S.  W.  853 

217,   221,   223 

LouisviUe  &  N.  E.  Co.  v.  Johnson,  —  Ky.  — ,  171  S.  W.  847 

16,  35,  36,  59 

LouisvUle  &  N.  E.  Co.  v.  Kemp,  140  Ga.  657,  6  N.  C.  C.  A.  75n, 

196n    20,   62,  94 

Louisville  &  N.  E.  Co.  v.  Lankford,  126  C.  C.  A.  247,  209  Fed.  321, 

6  N.  C.  C.  A.  86n,  106n 51,  205,  221 

Louisville  &  N.  E.  Co.  v.  Melton,  218  U.  S.  36,  54  L.  Ed.  921,  47 

L.  E.  A.  (N.  S.)  84n 239 

Louisville  &  N.  E.  Co.  v.  Moore,  156  Ky.  708,  4  N.  C.  C.  A.  227n, 

5  N.  C.  C.  A.  771n 16,  81,  306 

Louisville  &  N.  E.  Co.  v.  Mottley,  219  U.  S.  467,  55  L.  Ed.  297, 

34  L.  E.  A.  (N.  S.)  671 230 

Louisville  &  N.  E.  Co.  v.  Scott,  133  Ky.  724,  19  Ann.  Cas.  392, 

210  U.  S.  209,  55  L.  Ed.  183 314 

Louisville  &  N.  E.  Co.  v.  Stewart,  156  Ky.  550,  6  N.  C.  C.  A.  79n, 

447n,   450n,   454n 17,  271 

Louisville  &  N.  E.  Co.  v.  Strange 's  Adm'x,  156  Ky.  439,  6  N.  C. 

C.  A.  75n,  82n,  83n,  185n 16,  71,  140,  305 

Louisville  &  N.  E.  Co.  v.  Wene,  202  Fed.   (C.  C.  A.)   887 

31,  32,  217,  221 

Louisville  &  N.  E.  Co.  v.  "Winkler.  —  Ky.  — ,  173  S.  W,  151 36 

LouisviUe,  K  A.  &  C.  Ey.  Co.  v.  Eush,  127  Ind.  545 182 

LouisviUe,  N.  A.  &  C.  Ey.  Co.  v.  Wright,  134  Ind.  509 178 

Lundeen  v.  Great  N.  Ey.  Co.,  —  Minn.  — ,  150  N.  W.  1088 155 

MeAdow  V.  Kansas  City  W.  Ey.  Co.,  —  Mo.  App.  — ,  6  N.  C.  C. 

A.  76n,  206n,  233n,  164  S.  W.  188 15,  35,  130,  132,  303 

McAuliffe  V.  New  York,  C.  &  H.  E.  Co.,  150  N.  Y.  Supp.  512 71 

McChesney  v.  lUinois  C.  E.  Co.,  197  Fed.  85 234 

McCuUough  V.  Chicago,  E.  I.  &  P.  E.  Co.,  —  Iowa  — ,  142  N.  W. 

67,  6  N.  C.  C.  A.  78n,  444n,  449n,  451n.  .20,  150,  151,  152,  154,  155 

McDonald  v.  EaUway  T.  Co.,  121  Minn.  273 55,  217,  270 

McGarvey's  Guardian  v.  McGarvey's  Adm'r  et  al,  —  Ky.  — , 

173  S.  W.  765 154 


XXX       INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

[references  are  to  pages] 
McGovern  v.  Philadelphia  &  E.  R.  Co.,  235  U.  S.  389,  —  L.  Ed. 

— ,  209  Fed.  975,  6  N.  C.  C.  A.  441n 161,  203 

Mcintosh  V.  St.  Louis  &  S.  F.  R.  Co.,  —  Mo.  App.  — ,  168  S. 

W.   821 116,   256,   264,   273,  274 

McKay  v.  New  England  Dredging  Co.,  92  Me.  454 178 

McMillan  v.  Spider  Lake  Sawmill  &  Lumber  Co.,  115  Wis.  332, 

60  L.  R.  A.  589,  95  Am.  St.  Eep.  947 161 

McNeil  V.  Southern  By.  Co.,  202  U.  S.  543,  50  L.  Ed.  1142 184 

McNulta  V.  Ensch,  134  111.  46 126 

McNulta  V.  Lockridge,  137  111.  270,  31  Am.  St.  Eep.  362,  32  lU. 

App.   86 ' 126 

Maiorano  v.  Baltimore  &  O.  E.  Co.,  216  Pa.  402,  21  L.  R.  A.  (N. 

S.)  271 161 

Malloy  V.  Northern  P.  R.  Co.,  151  Fed.  1018,  1  N.  C.  C.  A.  862n.  .   191 
Martin  v.  Atchison,  T.  &  S.  F.  Ry.  Co.,  —  Kan.  — ,  145  Pac.  849.      24 

Maxwell  v.  Dow,  176  U.  S.  581,  44  L.  Ed.  597 313 

Meyers  v.  Norfolk  &  W.  Ry.  Co.,  —  N.  C.  — ,  78  S.  E.  280 103 

Michigan  C.  Ry.  Co.  v.  Vreeland,  227  U.  S.  59,  57  L.  Ed.  417, 

3  N.  C.  C.  A.  807,  Ann.  Cas.  1914C  176n 

12,  15,  68,  148,  149,  152,  159,  160,  177,  179,  181,  274,  275 

Midland  V.  R.  Co.  v,  Ennis,  —  Ark.  — ,  6  N.  C.  C.  A.  80n,  234n, 

159  S.  W.  215 255,  257,  269,  278 

Midland  V.  R.  Co.  v.  Fulgham,  104  C.  C.  A.  151,  181  Fed.  91.  .48,     64 
Midland  V.  R.  Co.  v.  LeMoyne,  —  Ark.  — ,  4  N.  C.  C.  A.  493n,  148 

S.  W.   654 253 

Milwaukee,  etc.  R.  R.  Co.  v.  Kellogg,  94  U.  S.  469,  24  L.  Ed.  256.     31 

Missouri,  K.  &  T.  Ry.  Co.  v.  Blalack,  105  Tex.  296 109 

Missouri,  K.  &  T.  Ry.  Co.  v.  Bunkley,  —  Tex.  Civ.  App.  — ,  56 

N.  C.  C.  A.  583n,  153  S.  W.  937 54,  217,  234 

Missouri,  K.  &  T.  Ry.  Co.  v.  Byrne,  40  C.  C.  A.  402,  100  Fed.  359.      31 
Missouri,  K.  &  T.  Ry.  Co.  v.  Denahy,  —  Tex.  — ,  6  N.  C.  C.  A.  202, 

165  S.  W.  529 80 

Missouri,  K.  &  T.  Ry.  Co.  v.  Fesmire,  —  Tex.  — ,  150  S.  W.  201.  .      96 
Missouri,  K.  &  T.  Ry.  Co.  v.  Freeman,  —  Tex.  — ,  5  N.  C.  C.  A. 

583n,  584n,  168  S.  W.  69 206 

Missouri,  K.  &  T.  Ry.  Co.  v.  Hawley,  —  Tex.  Civ.  App.  — ,  123  S. 

W.  726   277 

Missouri,  K.  &  T.  Ry.  Co.  v.  Lenahan,  39  Okla.  283,  6  N.  C.  C.  A. 

75n,  78n,  437n 248,  281 

Missouri,  K.  &  T.  Ry.  Co.  v.  Neaves,  —  Tex.  Civ.  App.  — ,  127  S. 

W.  1090   '. 277 

Missouri,  K.  &  T.  Ry.  Co.  v.  Rentz,  —  Tex.  Civ.  App.  — ,  6  N.  C. 

C.  A.  195n,  162  S.  W.  959 101 


TABLE  OF  CASES  XXXI 

[references  are  to  pages] 
Missouri,  K.  &  T.  Ry.  Co.  v.  Scott,  —  Tex.  Civ.  App.  — ,  160  S. 

W.  432   192 

Missouri,  K.  &  T.  Ey.  Co.  v.  West,  —  Okla.  — ,  134  Pac.  655.  .24,  109 
Missouri,  K.  &  T.  Ry.  Co.  v.  Wulf,  226  U.  S.  570,  57  L.  Ed.  355, 

6  N.  C.  C.  A.  230n,  237n,  Ann.  Cas.  1914B  134n.  . .  .247,  282,  285 
Moliter  v.  Wabash  R.  Co.,  —  Mo.  App.  — ,  168  S.  W.  250,'  6  N.  C. 

C.  A.  75n,  Sin,  233n 239,  244,  255,  256,  257,  278 

Mondou  V.  New  York,  N.  H.  &  H.  R.  Co.,  223  U.  S.  1,  56  L.  Ed. 

327,  1  N.  C.  C.  A.  875,  38  L.  R.  A.  (N.  S.)  44 8,  45,  213 

Monroe  v.  Pacific  Dredging  Co.,  84  Cal.  515,  18  Am.  St.  Rep.  248.    182 
Montgomery  v.  Carolina  &  N.  W.  R.  Co.,  163  N.  C.  597,  6  N.  C. 

C.  A.  88n 59 

Montgomery  v.  Southern  P.  Co.,  64  Or.  597,  47  L.  R.  A.  (N.  S.) 

13n 15,  86,  97 

Moyse  v.  Northern  P.  Ry.  Co.,  41  Mont.  272 24 

Mulhall  V.  FaUow,  176  Mass.  266 161 

Nashville,  C.  &  St.  L.  Ry.  Co.  v.  Banks,  156  Ky.  609,  6  N.  C.  C.  A. 

99n,  105n,  186n 69,  87,  218,  225 

NashviUe,  C.  &  St.  L.  Ry.  Co.  v.  Henry,  158  Ky.  88,  4  N.  C.  C.  A. 

495n,  6  N.  C.  C.  A.  99n,  106n 35,  165,  218 

Neil  V.  Idaho  &  W.  N.  R.  Co.,  22  Idaho  74 20,  93,  99,  218,  277 

Neith  V.  Delano,  —  Mo.  App.  — ,  171  S,  W.  1 210 

New  York,  C.  &  St.  L.  R.  Co.  v.  Niebel,  214  Fed.  (C.  C.  A.)  952. . 

172,  221,  223 

New  York,  N.  H.  &  H.  R.  Co.  v.  Portillo,  211  Fed.  (C.  C.  A.)  331.      61 
New  York,  N.  H.  &  H.  R.  Co.  v.  Walsh,  223  U.  S.  1,  56  L.  Ed.  327, 

1  N.  C.  C.  A.  875,  38  L.  R.  A.  (N.  S.)  44 8 

Niles  V.  Central  V.  Ry.  Co ,  87  Vt.  356,  6  N.  C.  C.  A.  75n.  . .  .205,  260 
Nordgard  v.  Marysville  &  N.  Ry.  Co.,  211  Fed.  721,  6  N.  C.  C.  A. 

207n 124,  127 

Norfolk  &  W.  Ry.  Co.  v.  Earnest,  229  U.  S.  114,  57  L.  Ed.  1096, 

3  N.  C.  C.  A.  806,  Ann.  Cas.  1914C  I72n.  .  .197,  217,  218,  219,  224 
Norfolk  &  W.  R.  Co.  v.  Holbrook,  235  U.  S.  625,  215  Fed.  687.  . 

54,  164,  171 

North  Carolina  R.  Co.  v.  Zachary,  232  U.  S.  248,  58  L.  Ed.  591, 

6  N.  C.  0.  A.  194n,  Ann.  Cas.  1914C  159n 

85,  93,  98,  102,  111,  119,  127,  133,  149,  245,  253,  255,  256,  274,  301 
Northern  P.  Ry.  Co.  v.  Babcock,  223  U.  S.  1,  56  L.  Ed.  327,  1  N. 

C.  C.  A.  875,  38  L.  R.  A.  (N.  S.)  44 8 

Northern  P.  Ry,  Co.  v.  Dixon,  139  Fed.  737 49 

Northern  P.  R.  Co.  v.  Maerkl,  117  C.  C.  A.  237,  198  Fed.  1 

77,  134,  199,  176,  177 

Northern  P.  Ry.  Co.  v.  Washington,  222  U.  S.  370,  56  L.  Ed.  237, 

53  Wash.  673 70 


XXXU    INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

[references  are  to  pages] 
Oberlin  v.  Oregon  W.  R.  &  N.  Co.,  —  Ore.  — ,  6  N.  C.  C.  A.  75n, 

79n,  95n,  188n,  142  Pac.  554 115,  119,  192,  200 

Oliver  v.  Northern  P.  E.  Co.,  196  Fed.  432 108 

Olsen  V.  Andrews,  168  Mass.  261 101 

Omaha  &  C.  B.  S.  Ry.  Co.  and  Omaha  &  C.  B.  Ry.  &  B.  Co.  v. 

Interstate  Commerce  Commission  and  United  States,  230  U. 

S.  324,  57  L.  Ed.  1501,  46  L.  E.  A.  (N.  S.)  385n,  191  Fed.  40, 

179  Fed.  243,  17  Interst.  Com.  Com'n  R.,  239 132 

Osborn  v.  Lovell,  36  Mich.  250 226 

Owens  V.  Chicago  G.  W.  R.  Co.,  113  Minn.  49 20 

Packet  Co.  v.  McCue,  17  Wall  (U.  S.)  508,  21  L.  Ed.  705 101 

Padgett  V.  Seaboard  A.  L.  Ry.  Co.,  —  S.  C.  — ,  83  S.  E.  633 24 

Pankey  v.  Atchison,  T.  &  S.  F.  Ry.  Co.,  180  Mo.  App.  185 

32,  34,  64,  218,  222,  234 

Parsons  v.  Chicago  N.  W.  Ry.  Co.,  167  U.  S.  447,  42  L.  Ed.  232.  .    135 
Patry  v.  Chicago  &  W.  I.  R.  Co.,  —  111.  — ,  106  N.  E.  843,  185  111. 

App.  361  72,  120 

Patton  V.  Cincinnati,  N.  O.  &  T.  P.  Ry.,  208  Fed.  29 234 

Patton  V.  Texas  &  P.  Ry.  Co.,  179  U.  S.  658,  45  L.  Ed.  362,  5  N. 

C.  C.  A.  43n 49 

Pecos  &  N.  T.  Ry.  Co.  v.  Cox,  105  Tex.  40 34 

Pedersen  v.  Delaware,  L.  &  W.  Ry.  Co.,  229  U.  S.  146,  57  L.  Ed. 

1125,  6  N.  C.  C.  A.  198n,  924n,  Ann.  Cas.  1914C  153n 

45,  68,  72,  77,  81,  84,  103,  104,  110,  113,  117,  123 

Peery  v.  Illinois  C.  R.  Co.,  123  Minn.  264,  6  N.  C.  C.  A.  I84n, 

—  Minn.  — ,  150  N.  W.  382 35,  115 

Pelton  V.  Illinois  C.  R.  Co.,  —  la.  — ,  150  N.  W.  236 302 

Pennsylvania  R.  Co.  v.  Cole,  214  Fed.  (C.  C.  A.)  948 217,  223 

Pennsylvania  R.  Co.  v.  Goodman,  62  Pa.  329,  339 182 

Pennsylvania  R.  Co.  v.  Goughnour,  126  C.  C.  A.  39,  208  Fed.  961 

51,   205 

Pennsylvania  R.  Co.  v.  Knox,  218  Fed.  (C.  C.  A.)  748 140 

Penny  v.  New  Orleans,  G.  N.  R.  Co.,  —  La.  — ,  66  So.  313 250,  255 

Pfeiffer  v.  Oregon  W.  R.  &  N.  Co.,  —  Or.  — ,  7  N.  C.  C.  A.  685, 

144  Pac.  762 168,  218,  222,  291 

Philadelphia,  B.  &  W.  R.  Co.  v.  Schubert,  224  U.  S.  603,  56  L.  Ed. 

911,  1  N.  C.  C.  A.  892,  6  N.  C.  C.  A.  103n 7,  228,  229 

PhUadelphia,  B.  &  W.  R.  Co.  v.  Tucker,  35  App.  Cas.  (D.  C.)  123, 

1  N.  C.  C.  A.  841n 102,  191,  221 

Pierce  v.  Conners,  20  Colo.  178,  47  Am.  St.  Rep.  279 178 

Pierson  v.  New  York,  S.  &  W.  R.  Co.,  83  N.  J.  L.  661 112 

Pittsburg,  C.  C.  &  St.  L.  Ry.  Co.  v.  Glinn,  —  C.  C.  A.  — ,  219  Fed. 

148    85 

PoweU  V.  Freeman,  105  Tex.  317 95 


TABLE  OF  CASES  XXX111 

[references  are  to  pages] 

Pullman  Co.  v.  Lawrence,  74  Miss.  782 35 

Kailroad  Commission  of  Louisiana  v.  Texas  &  P.  E.  Co.,  229  U.  S. 

336,  57  L.  Ed.   1215 143 

Easmussen  v.  United  States,  197  U.  S.  516,  49  L.  Ed.  862 312 

Eeardon  v.  Blaklala  C.  C.  Co.,  193  Fed.  189 282 

Eeeve  v.  Northern  P.  Ey.  Co.,  —  Wash.  — ,  144  Pac.  63 24 

Eenlund  v.  Commodore  Min.  Co.,  89  Minn.  41,  99  Am.  St.  Eep.  534  161 
Ehoads  v.  Chicago  &  A.  Ey.  Co.,  227  lU.  328,  11  L.  E.  A.  (N.  S.) 

623,  10  Ann,  Cas.  Ill 178 

Eice  V.  Boston  &  M,  E.  Co.,  203  Fed.  580 235 

Eich  V.  St.  Louis  &  S.  F.  E.  Co.,  166  Mo.  App.  379 

5,  12,  87,  247,  255,  277 

Eichelieu  v.  Union  P.  Ey.  Co.,  —  Neb.  — ,  149  N.  W,  772 155,  158 

Eichmond  v,  Chicago  &  W.  M.  Ey.  Co.,  87  Mich.  374 178 

Eidge  V.  Norfolk  S.  Ey.  Co.,  —  N.  C.  — ,  83  S.  E.  762 48,     52 

Eief  V.  Great  N.  Ey.  Co.,  —  Minn.  — ,  148  N.  W.  309 24 

Eobinson  v.  Baltimore  &  O.  E.  Co.,  40  App.  Cas.  (D.  C.)  169 109 

Boot  V.  Kansas  City  S.  Ey.  Co.,  195  Mo.  348,  6  L.  E.  A.  (N.  S.) 

212n    35 

Boss  V.  St.  Louis  &  S.  F.  E.  Co.,  —  Kan.  — ,  144  Pac.  844 

218,    223,  226 

Eowlands  v.  Chicago  N.  W.  E.  Co.,  149  Wis.  51 70,  273 

Buck  V.  Chicago,  M.  &  St.  P.  Ey.  Co.,  153  Wis.  158,  6  N.  C.  C.  A. 

204n    16,   83,  111 

San  Antonio  &  A.  P.  Ey.  Co.  v.  Long,  87  Tex.  148,  24  L.  E.  A. 

637    178 

Sanders  v.  Charleston  &  W.  C.  Ey.  Co.,  —  S.  C.  — ,  6  N.  C.  C.  A. 

200n,  81  S.  E.  283 24,  100 

Sandidge  v.  Atchison  T.  &  S.  F.  E.  Co.,  193  Fed.   (C.  C.  A.)  867 

191,  221 

San  Jose  Land  &  Water  Co.  v.  San  Jose  Eanch  Co.,  189  U.  S.  177, 

180,  47  L.  Ed.  765,  768 242 

San  Pedro,  L.  A.  &  S.  B.  Co.  v.  Davide,  127  C.  C.  A.  454,  210  Fed. 

870,  6  N.  C.  C.  A.  197n 52,  93.     99 

Saunders  v.  Southern  Ey.  Co.,  —  N.  C.  — ,  83  S.  E.  573 107 

Schaub  V.  Hannibal,  St.  J.  Ey.  Co.,  106  Mo.  74 182 

Sehlemmer  v.  Buffalo,  E.  &  P.  E.  Co.,  205  U.  S.  1, 12,  51  L.  Ed.  681, 

686,  1  N.  C.  C.  A.  859n,  4  N.  C.  C.  A.  483n,  207  Pa.  198,  220 

U.  S.  590,  55  L.  Ed.  596,  4  N.  C.  C.  A.  483n,  222  Pa.  470 

194,  200,  204,  213 

Schnatz  v.  Philadelphia  &  E.  E.  Co.,  160  Pa.  602 178 

Schweig  V.  Chicago,  M.  &  St.  P.  E.  Co.,  216  Fed.  (C.  C.  A.)  750, 

205  Fed.  96 212,  215 

Seaboard  A.  L.  By.  Co.  v.  Duvall,  225  U.  S.  477,  56  L.  Ed.  1171. . 

239,  242,  256,  273 


XXXIV  INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

[references  ake  to  pages] 
Seaboard  A.  L.  Ey.  Co.  v.  Horton,  233  U.  S.  492,  58  L.  Ed.  1062, 

6  N.  C.  C.  A.  75n,  95n,  101,  102n,  162  N.  C.  424 

12,  15,  20,  36,  192,  193,  197,  201,  204,  209,  218,  219,  280 

Seaboard  A.  L.  Ey.  Co.  v.  Moore,  228  U.  S.  433,  57  L.  Ed.  907, 

3  N.  C.  C.  A.  812 20,  193,  213 

Seale  v.  St.  Louis,  S.  F.  &  T.  E.  Co.,  229  U.  S.  156,  57  L.  Ed.  1129, 

Ann.  Cas.  1914C  156n,  —  Tex.  Civ.  App.  — ,  148  S.  W.  1099 

244,  277,  278 

Second  Employers'  Liability  Cases,  223  U.  S.  1,  56  L.  Ed.  327, 

1  N.  C.  C.  A.  875,  38  L.  E.  A.  (N.  S.)  44 

7,   11,  68,  113,  123,  233,  261 

Seiben  v.  Great  N.  Ey.  Co.,  76  Minn.  269 178 

Seward  v.  Vera  Cruz,  10  App.  Cas.  59 182 

Shade  v.  Northern  P.  Ey.  Co.,  206  Fed.  353,  6  N.  C.  C,  A.  93n.255,  256 

Shannon  v.  Boston  &  M.  E.  Co.,  —  N.  H.  — ,  92  Atl.  167 237 

Shugart  v.  Atlantic,  etc.  Ey.  Co.,  66  C.  C.  A.  379,  133  Fed.  505 31 

Skaggs  V.  lUinois  C.  E.  Co.,  124  Minn.  503 56 

Smith  V.  Lisher,  23  Ind.  502 226 

Smith  V.  Northern  P.  E.  Co.,  —  Wash.  — ,  5  N.  C.  C.  A.  947,  6  N. 

C.  C.  A.  85n,  92n,  140  Pac.  685 52 

South  Covington  &  C.  St.  Ey.  Co.  v.  Finan  's  Adm  'x,  153  Ky.  340 

20,  38,  60,  305 

Southern  P.  Co.  v,  Vaughn,  —  Tex.  Civ.  App.  — ,  165  S.  W.  885 

119,  295,  302 

Southern  Ey.  Co.  v.  Bennett,  233  U.  S.  80,  58  L.  Ed.  860 

16,  49,  245,  303,  318 

Southern  Ey.  Co.  v.  Crockett,  234  U.  S.  725,  58  L.  Ed.  1564,  6  N. 

C.  C.  A.  94n 118,  198,  218 

Southern  Ey.  Co.  v.  Hill,  139  Ga.  549 151,  218,  220 

Southern  Ey.  Co.  v.  Howerton,  —  Ind.  — ,  101  N.  E.  121,  105  N. 

E.  1025,  6  N.  C.  C.  A.  75n,  82n 93,  191,  249,  255,  264,  281 

Southern  Ey.  Co.  v.  Jacobs,  —  Va.  — ,  6  N.  C.  C.  A.  94n,  186n, 

81  S.  E.  99 55,  91,  213 

Southern  Ey.  Co.  v.  Murphy,  9  Ga.  App.  190,  3  N.  C.  C.  A.  791n.71,  72 
Southern  Ey.  Co.  v.  Smith,  123  C.  C.  A.  488,  205  Fed.  360 

55,    189,  317 

Southern  Ey.  Co.  v.  Smith,  214  Fed.  (C.  C.  A.)  942 217 

Southern  Ey.  Co.  v.  United  States,  222  U.  S.  20,  56  L.  Ed.  72, 

3  N.  C.  C.  A.  822 118,  119 

Spokane  &  I.  E.  E.  Co.  v.  CampbeU,  217  Fed,  (C.  C.  A.)  518.  .32,  223 
St.  Louis  &  S.  F.  E.  Co.  v.  Conarty,  106  Ark.  421,  6.  N.  C.  C.  A. 

202n,  447n   80,  177,  234 

St.  Louis  &  S.  F.  E.  Co.  v.  Duke,  112  C.  C.  A.  564,  192  Fed.  306 .  .   159 
St.  Louis  &  S.  F.  E.  Co.  v.  Geer,  —  Tex.  Civ,  App,  — ,  149  S.  W. 

1178   148,  159 


TABLE  OP  CASES  XXXV 

[references  are  to  pages] 
St.  Louis,  I.  M.  &  S.  Ey.  Co.  v.  Conley,  110  C.  C.  A.  97,  187  Fed. 

949 70 

St.  Louis,  I.  M.  &  S.  Ey,  Co.  v.  Hesterly,  228  U.  S.  702,  57  L.  Ed. 

1031,  98  Ark.  240 12,  24,  163,  242,  247,  249 

St.  Louis,  I.  M.  &  S.  Ey.  Co.  v.  McWliirter,  229  U.  S.  265,  57  L. 

Ed.  1179,  145  Ky.  427 15,  36,  240,  241,  289 

St.  Louis,  I.  M.  &  S.  Ey.  Co.  v.  Needham,  16  C.  C.  A.  457,  69  Fed. 

823 31 

St.  Louis,  L  M.  &  S.  Ey.  Co.  v.  Sharp,  —  Ark.  — ,  171  S.  W.  95.  .  261 
St.  Louis,  I.  M.  &  S.  Ey.  Co.  v.  Taylor,  210  U.  S.  281,  52  L.  Ed. 

1061    , 47,   239,  242 

St.  Louis,  M.  &  S."  E.  E.  Co.  v.  Garner,  76  Ark.  555 178 

St.  Louis,  S.  F.  &  T.  E.  Co.  v.  Seale,  229  U.  S.  156,  57  L.  Ed.  1129, 

3  N.  C.  C.  A.  800,  Ann.  Cas.  1914C  156n 

12,  92,  103,  107,  110,  149,  247,  255,  279,  284 

St.  Louis,  S.  F.  &  T.  Ey.  Co.  v.  Smith,  171  S.  W.  512,  160  S.  W. 

317    284 

St.  Louis  S.  W.  Ey.  Co.  v.  Brothers,  —  Tex.  Civ.  App.  — ,  165 

S.  W.  488 12,  102,  247,  251 

St.  Louis  S.  W.  Ey.  Co.  v.  Huey,  —  Tex.  Civ.  App.  — ,  130  S.  W. 

1017    178 

Standard  Light  &  Power  Co.  v.  Muncey,  33  Tex,  Civ.  App.  416.  .  .  178 
Stearns  v.  Chicago,  E.  I.  &  P.  Ey.  Co.,  —  Iowa  — ,  148  N,  W.  128.  118 
Sweet  V.  Chicago  &  N.  W.  Ey.  Co.,  157  Wis.  400,  6  N.  C.  C.  A. 

78n,  94n,  232n,  451n 16,  57,  317 

Swift  &  Co.  V.  Johnson,  71  C.  C.  A.  619,  138  Fed.  867,  1  L.  E.  A. 

(N.  S.)  1161n 178 

Szymanski  v.  Blumenthal,  3  Pennew.   (Del.)   558 161 

Taff  Ey.  Co.  v.  Jenkins,  A.  C.  Eng.  Cas 179 

Taylor  v.  Southern  Ey.  Co.,  178  Fed.  380 113 

Taylor  v.  Taylor,  232  U.  S,  363,  58  L.  Ed.  638,  6  N.  C.  C.  A.  436 

181,  188 

Teel  V.  Chesapeake  &  O.  Ey.  Co.,  123  C.  C.  A.  240,  204  Fed.  918, 

6  N.  C.  C.  A.  79n,  47  L.  E.  A.  (N.  S.)  21n 234 

Texas  &  P.  E.  Co.  v.  Archibald,  170  U.  S.  665,  42  L.  Ed.  1188, 

4  Am.  Neg.  Eep.  746 204,  213 

Texas  &  P.  E.  Co.  v.  Behymer,  189  U.  S.  468,  47  L.  Ed.  905,  13 

Am.  Neg.  Eep.  695 204 

Texas  &  P.  E.  Co.  v.  Harvey,  228  U.  S.  319,  57  L.  Ed.  852 193 

The  Passaic,  190  Fed.  644,  122  C.  C.  A.  466,  204  Fed.  266 63,  131 

The  Pawnee,  205  Fed.  33 131 

Thomas  v.  Boston  &  M.  E.  Co.,  219  Fed.  (C.  C.  A.)  180 106 

Thomas  v.  Chicago  &  N.  W.  Ey.  Co.,  202  Fed.  766,  6  N.  C.  C.  A. 

439n,  446n 146,  149,  236,  274 


XXXVl  INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

[eeferences  are  to  pages] 

Thompson  v.  Utah,  170  U.  S.  343,  42  L.  Ed.  1061 312 

Thompson  v.  Wabash  R.  Co.,  —  Mo.  — ,  171  S.  W.  364 133 

Thornbro  v.  Kansas  City,  M.  &  O.  Ry.  Co.,  91  Kan.  684,  139  Pac. 

1199  89 

Thornton  v.  Seaboard  A.  L.  Ry.  Co.,  —  S.  C.  — ,  6  N.  C.  C.  A.  85n, 

93n,  82  S.  E.  433 59,  151 

Tilgham  v.  Seaboard  A.  L.  Ry.  Co.  —  N.  C.  — ,  83  S.  E.  315.  .218,  318 

Tilley  v.  Hudson  R.  R.  Co.,  24  N.  Y.  471,  29  N.  Y.  252 182 

Tilt  V.  Kelsey,  207  U.  S.  43,  52  L.  Ed.  95 239 

Tinkham  v.  Boston  &  M.  R.  Co.,  77  N.  H.  711,  6  N.  C.  C.  A.  81n, 

233n   16,  303 

Toledo,  St.  L.  &  W.  R.  Co.  v.  Slavin,  —  U.  S.  — 12,  278 

Travelers'  Ins.  Co.  v.  Melick,  12  C.  C.  A.  544,  65  Fed.  178,  27  L. 

R.  A.  629 31 

Troxell  v.  Delaware,  L.  &  W.  R.  Co.,  180  Fed.  871,  183  Fed.  373, 

227  N.  S.  434,  57  L.  Ed.  586 248,  315 

Truesdell  v.  Chesapeake  &  O.  Ry.  Co.,  159  Ky.  718 94,  192,  210 

Tsmura  v.  Great  N,  Ry.  Co.,  58  Wash.  316,  3  N.  C.  C.  A.  786n.  .95,  274 
Twitchell  v.  Pennsylvania,  7  WaU.  (U.  S.)  321,  19  L.  Ed.  223.  ..  313 
Ullrich  V.  New  York,  N.  H.  &  H.  R.  Co.,  193  Fed.  768 .  .  235,  257,  258 

Union  P.  R.  Co.  v.  Fuller,  122  C.  C.  A.  359,  204  Fed.  45 31 

Union  P.  R.  Co.  v.  O'Brien,  161  U.  S.  451,  40  L.  Ed.  766 204 

Union  P.  R.  Co.  v.  Wyler,  158  U.  S.  285,  39  L.  Ed.  983 284,  287 

United  States  v.  American  Tobacco  Co.,  221  U.  S.  106,  55  L.  Ed. 

663    181 

United  States  v.  Atchison,  T.  &  S.  F.  Ry.  Co.,  90  C.  C.  A.  327, 

163   Fed.    517 ¥8 

United  States  v.  Chicago,  M.  &  St.  P.  Ry.  Co.,  149  Fed.  486 133 

United  States  v.  Chicago,  M.  &  St.  P.  Ry.  Co.,  197  Fed.  624 69 

United  States  v.  Colorado  N.  W.  R.  Co.,  85  C.  C.  A.  27,  157  Fed. 

321,  15  L.  R.  A.  (N.  S.)  167n,  13  Ann.  Cas.  893 69,  137 

United  States  v.  Geddes,  65  C.  C.  A.  320,  131  Fed.  452.  .123,  135,  137 

United  States  v.  Standard  Oil  Co.,  155  Fed.  306 135 

United  States  v.  Union  Stock  Yards  &  T.  Co.,  226  U.  S.  300,  57  L. 

Ed.  232,  192  Fed.  330 135,  137,  138 

VanBrimmer  v.   Texas  &  P,  Ry.  Co.,    (C.  C.  A.)    190  Fed.  394, 

6  N.  C.  C.  A.  79n 90 

Vandalio  R.  Co.  v.  Stringer,  —  Ind.  — ,  106  N.  E.  865 270,  272 

Vaughn  v.  St.  Louis  &  S.  F.  Ry.  Co.,  177  Mo.  App.  155,  6  N.  C. 

C.  A.  75n,  438n,  439n 12,  56,  69,  248,  281 

Vickery  v.  New  London  N.  Ry.  Co.,  87  Conn.  634,  4  N.  C.  C.  A. 

218n,  6  N.  C,  C.  A.  76n,  93n,  230n 206,  212,  260 


TABLE  OF  CASES  XXXVll 

[references  are  to  pages] 

Wabash  R.  Co.  v.  Cregan,  23  Ind.  App.  1 178 

Wabash  E.  Co.  v.  Hayes,  234  U.  S.  86,  58  L.  Ed.  1226,  6  N.  C. 

C.  A.  224,  180  111.  App.  511 16,  241,  244,  269,  303 

Wagner  v.  Chicago  &  A.  R.  Co.,  —  lU.  — ,  106  N.  E.  809 

129,  231,  253 

Walker  v.  Sauvinet,  92  U.  S.  90,  23  L.  Ed.  678 313 

Walsh  V.  New  York,  N.  H.  &  H.  K.  Co.,  173  Fed.  494 

8,   11,  80,   111,  251 

Walton  V.  Southern  Ry.  Co.,  179  Fed.  175 274 

Washington  Ry.  Co.  v.  Downey,  40  App.  Cas.  (D.  C.)  147 131 

Watson  V.  St.  Louis,  I.  M.  &  S.  Ry.  Co.,  189  Fed.  942 4 

Western  U.  T.  Co.  v.  Call  Pub.  Co.,  181  U.  S.  92,  47  L.  Ed.  765.  .  181 
Western  U.  T.  Co.  v.  White,  —  Tex.  Civ.  App.  — ,  5  N.  C.  C.  A. 

377n,  162  S.  W.  905 .  35 

White  V.  Central  V.  Ry.  Co.,  87  Vt.  330,  6  N.  C.  C.  A.  75n,  92d, 

lOln,    450n    260 

White  V.  Seaboard  A.  L.  Ry.  Co.,  —  Ga.  — ,  80  S.  B.  667 35 

Whittaker  v.  Illinois  C.  Ry.  Co.,  176  Fed.  130 271 

Wiles  V.  Great  N.  Ry.  Co.,  125  Minn.  348,  5  N.  C.  C.  A.  60 48 

Winfred  v.  Northern  P.  R.   Co.,  227  U.  S.  296,  57  L.  Ed.  518, 

173   Fed.   65 278 

Winters  v.  Minneapolis  &  St.  L.  R.  Co.,  —  Minn.  — ,  6  N.  C,  C.  A. 

78n,  201n,  148  N.  W.  106 17,  60,  80,  271,  313 

Wisconsin  v.  Chicago,  M.  &  St.  P.  Ry.  Co.,  136  Wis.  407 48 

Wright  V.  Chicago,  R.  I.  &  P.  E.  Co.,  94  Neb.  317,  6  N.  C.  C.  A. 

183n    71,  113 

Wright  V.  Yazoo  &  M.  V.  Ry.  Co.,  197  Fed.  94 191 

Yazoo  &  M.  V.  R.  Co.  v.  Wright,  235  U.  S.  370,  —  L.  Ed.  — ,  125 

C.  C.  A.  25,  207  Fed.  281,  197  Fed.  94 203,  317 

Zikos  V.  Oregon,  W.  R.  &  N.  Co.,  179  Fed.  893,  3  N.  C.  C.  A.  783n, 

784 94 


INJURIES  TO  INTERSTATE  EM- 
PLOYES ON  RAILROADS 


CHAPTER  I 

SCOPE,   PURPOSE,   VALIDITY   AND   EFFECT 
OF  FEDERAL  ACT 

§  1.  Scope  of  the  Federal  Employers'  Liability  Act. 

§  2.  Purpose  of  the  Act. 

§  3.  First  Federal  Employers '  Liability  Act  Invalid. 

§  4.  Second  Federal  Employers '  Liability  Act  Valid. 

§  5.  Extent  of  Power  Exercised  by  Congress  in  Passing  Federal  Act. 

§  6.  Amendments  of  1910. 

§  7.  Effect  upon  State  Laws. 

§  8.  Decisions  of  National  Courts  Construing  Act  Control. 

§  9.  Laws  of  State  Control  as  to  Procedure. 

§  1.  Scope  of  the  Federal  Employers'  Liability- 
Act. — The  Act  of  Congress,  commonly  known  as  the 
Federal  Employers'  Liability  Act,  was  approved  on 
April  22,  1908.  This  federal  statute  governs  the 
rights,  duties  and  liabilities  of  common  carriers  by 
railroad  to  their  employes  for  personal  injuries, 
when  the  injury  or  death  occurs  while  the  carrier 
is  engaged  and  the  injured  servant  is  employed  in 
interstate  commerce.  The  law  also  applies  to  com- 
mon carriers  by  railroad  and  all  their  employes  in 
the  territories  and  other  possessions  of  the  United 
States. 

Nearly  all  railroads  in  the  United  States  are  con- 

Roberts  Liabilities — i 


I  INJURIES   TO    INTERSTATE   EMPLOYES  ON   RAILROADS 

stantly  engaged  in  interstate  commerce.  Under  the 
controlling  rulings  and  decisions  of  the  national 
Supreme  Court  during  the  years  1912, 1913  and  1914, 
in  cases  hereinafter  cited,  it  is  conservatively  esti- 
mated by  those  in  positions  to  know  that  at  least 
80  per  cent  of  all  railroad  employes  in  the  United 
States  are  employed  in  interstate  commerce,  so  that, 
if  injured  or  killed,  while  so  employed  in  interstate 
commerce,  the  remedy  for  the  injured  man,  if  living, 
and,  if  dead,  for  his  dependents,  is  to  be  determined 
and  measured  by  this  federal  act. 

Employes  injured  while  engaged  in  intrastate 
commerce  are  still  governed  by  the  laws  of  the  states 
where  the  accidents  occur.  As  to  intrastate  em- 
ployes, the  remedy  provided  by  the  state,  is  exclu- 
sive, and  as  to  interstate  employes,  working  for 
interstate  railroads,  the  remedy  given  by  the  federal 
statute,  is  exclusive,  so  that  a  practitioner  repre- 
senting any  employe,  or  an  employe's  beneficiaries 
in  case  of  death,  in  any  action  for  personal  in- 
juries against  a  common  carrier  by  railroad,  must 
familiarize  himself  with  the  Federal  Employers' 
Liability  Act  to  determine  which  law,  if  any,  fur- 
nishes a  remedy  for  his  client. 

§  2.  Purpose  of  the  Act. — Prior  to  the  enactment 
of  the  Federal  Employers '  Liability  Act  of  1908  the 
law  governing  the  liability  of  railroad  companies 
engaged  in  interstate  commerce  to  their  employes 
for  personal  injuries  while  employed  in  such  com- 
merce, depended  upon  the  statutes  and  decisions  of 
the  state  in  which  the  accident  occurred.  In  some 
states   the   fellow   servant   doctrine,    that   is,   uon- 


SCOPE,    VAUDITY    AND    EFFECT    OF   ACT  3 

liability  of  railroads  for  injuries  to  one  servant  by 
the  negligence  of  another,  was  enforced,  but  in 
others  it  had  been  abolished  by  statute  or  judicial 
rulings.  In  some  jurisdictions  contributory  negli- 
gence was  a  bar  to  the  suit,  while  in  others  the 
employe's  negligence  contributing  to  the  injury 
merely  reduced  the  damages.  Assumption  of  risk 
as  a  defense  in  some  states  was  applied  with  its  full 
common  law  vigor;  but  in  other  jurisdictions  it  had 
been  partially  abolished  by  statute  or  changed  by 
judicial  legislation  to  a  mere  verbal  formula  with- 
out substance  as  a  defense  to  negligence.  Some 
judges  had  held,  that  contracts  with  employes  not 
to  sue  in  consideration  of  some  form  of  insurance 
or  indemnity  fund,  were  valid,  while  others  decided 
to  the  contrary. 

From  this  babel  of  judicial  voices,  with  its  con- 
sequent glaring  inequities  and  inequalities,  came  the 
national  act,  declaring  one  rule  of  liability  through- 
out the  nation  and  with  it,  as  a  necessary  concomi- 
tant, the  decisions  of  the  national  courts,  construing 
the  act  in  all  its  parts,  became  binding  upon  all  state 
courts.  The  fellow  servant  doctrine  was  abolished; 
something  akin  to  comparative  negligence  was  sub- 
stituted for  contributory  negligence;  assumption  of 
risk  in  certain  cases  was  abolished;  contracts  for  a 
consideration  of  indemnity  waiving  the  right  to  sue 
were  declared  void  and  the  principle  of  compensation 
as  a  substitute  for  penalties  in  the  way  of  damages 
which  regulated  recoveries  in  certain  states,  was 
adopted.  Congress  enacted  this  statute  so  that  a 
uniform  law  could  apply  to  those  engaged  in  inter- 


4  INJURIES   TO   INTERSTATE   EMPLOYES   ON   RAILROADS 

state  commerce  in  all  the  states,  and  so  that  certain 
common  law  rules  determining  liability  might  be 
abolished  in  order  to  protect  the  lives  and  persons 
of  employes,  by  securing  a  more  careful  selection 
of  employes,  a  closer  supervision  of  them  and  a  more 
rigid  enforcement  of  their  duties.^     -- 

§  3.  First  Employers'  Liability  Act  Invalid. — The 
first  Federal  Employers'  Liability  Act  of  1906, 
passed  by  Congress  and  approved  June  11,  1906,  was 
declared  invalid  by  the  national  Supreme  Court, 
because  its  terms  included  all  who  engaged  in  inter- 
state commerce  between  the  states — hacks,  ferries, 
bridges,  trolley  lines,  telephone  and  telegraph  com- 
panies, and  railroads — as  carriers  as  well  as  all  their 
employes,  regardless  of  whether  the  employer  was 
engaged  in  or  the  injured  servant  was  employed  in 
interstate  commerce  at  the  time  of  the  injury.^  The 
first  act  included  every  individual  or  corporation 
engaged  in  interstate  commerce  between  the  states 
and  all  their  employes. 

This  act  was  broader  than  the  constitutional  power 
delegated  by  the  states  to  the  national  government, 
and  hence  was  invalid  as  being  beyond  the  power 
given  to  Congress.  The  act  however,  was  declared 
valid  as  to  the  District  of  Columbia  and  territories 
of  the  United  States,  for  the  reason  that  Congress 
has  plenary  powers  in  all  matters  relating  to  such 
territories.    In  the  District  of  Columbia,  the  Panama 

1.  Kelly  V.  Great  Northern  Ey.,  152  Fed.  211;  Watson  v.  St.  Louis, 
I.  M.  &  S.  Ey.  Co.,  189  Fed.  942. 

2.  First  Employers'  Liability  Cases,  207  U.  S.  463,  52  L.  Ed.  297, 
aflf'g  Brooks  v.  Southern  P.  Ey.  Co.,  148  Fed.  986,  and  Howard  v. 
Illinois  C.  By.  Co.,  148  Fed.  997. 


SCOPE,  VALIDITY  AND  EFFECT  OF  ACT  5 

Canal  Zone,  Alaska,  Porto  Rico,  Hawaiian  Islands 
and  Philippine  Islands,  by  the  Act  of  1906  every 
common  carrier  engaged  in  trade  or  commerce  was 
liable  ' '  to  any  of  its  employes. ' '  ^ 

As  to  carriers  engaged  in  commerce  between  the 
states,  the  majority  opinion  held  that  matters  under 
the  jurisdiction  of  the  national  government  and  those 
within  the  sole  jurisdiction  of  the  states,  were  so 
blended  in  the  act  that  they  could  not  be  separated 
by  the  court,  and  therefore,  the  whole  act  as  to 
common  carriers  and  their  employes  engaged  in 
commerce  between  the  states,  must  be  held  void. 
The  part  of  the  act  applying  to  territories,  was  held 
to  be  capable  of  separation  by  a  judicial  interpreta- 
tion and  as  so  separated,  it  was  held  valid.  In  the 
1906  Act  Congress  attempted  to  legislate  upon  a 
subject  matter  wholly  within  the  power  of  the  state 
and  had  so  interblended  that  power  with  its  juris- 
diction over  interstate  commerce,  that  the  several 
clauses  could  not  be  separated,  and  that  part  cover- 
ing interstate  commerce  remain  valid. 

§4.  Second  Federal  Employers'  Liability  Act 
Valid. — After  the  national  Supreme  Court  declared 
the  Act  of  1906  invalid  on  January  6,  1908,  for  the 
reasons  mentioned  in  the  preceding  paragraph. 
Congress  passed  the  Second  Federal  Employers' 
Liability  Act  (§  35,  U.  S.  Stat,  at  L.  65  c.  149),  which 
was  approved  April  22,  1908.^    The  first  section  pro- 

3.  The  1906  Act  was  valid  as  to  these  territories:  El  Paso  &  N. 
E.  E.  Co.  V.  Gutierrez,  215  U.  S.  87,  54  L.  Ed.  106,  aflf'g  102  Tex.  378; 
Atchison,  T.  &  S.  F.  Ey.  Co.  v.  MiUs,  49  Tex.  Civ.  App.  349. 

4.  The  entire  act  without  the  1910  amendments  is  quoted  in  full 
in  Eich  v.  St.  Louis  &  S.  F.  E.  Co.,  166  Mo.  App.  379,  which  was  the 


6  INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

vides  that  every  common  caiTier  by  railroad  while 
engaged  in  interstate  commerce,  shall  be  liable  to 
every  employe  while  employed  by  such  carrier  in 
such  commerce  or  in  case  of  his  death,  to  certain 
beneficiaries  therein  named,  for  such  injury  or  death, 
resulting  in  whole  or  in  part,  from  the  negligence  of 
the  carrier,  or  its  employes,  or  by  defects  or  in- 
sufSciencies  due  to  negligence  in  any  of  its  equip- 
ments or  property.  The  second  section  provides  that 
every  common  carrier  by  railroad  on  lands  of  the 
United  States  other  than  states  shall  be  liable  in  the 
same  way  to  any  of  its  employes.  The  third  section 
provides  that  contributory  negligence  shall  not  bar 
recovery,  but  shall  only  diminish  the  damages,  except 
that  no  employe  injured  or  killed  where  the  viola- 
tion of  a  safety  law  for  employes  contributed  to  the 
injury,  shall  be  held  to  have  been  guilty  of.  con- 
tributory negligence.  The  fourth  section  provides 
that  assumption  of  risk  shall  not  be  a  defense,  where 
the  violation  of  a  safety  law  contributed  to  the 
accident.  The  fifth  section  declares  all  contracts 
or  devices  intended  to  exempt  the  carrier  from  lia- 
bility under  the  act  to  be  void,  except  that  the 
carrier  may  plead  as  a  set-off  any  sum  if  paid  to  the 
injured  employe  as  insurance  or  relief  fund.  Sec- 
first  case  by  the  Missouri  appellate  courts  construing  the  act.  Judge 
Nortoni,  in  that  case,  held  that  the  remedy  provided  by  the  act  was 
exclusive  and  that  a  switchman  on  a  freight  train  carrying  freight 
from  a  point  in  a  state  to  a  point  in  another  was  engaged  in  inter- 
state commerce  and  that  a  suit  by  a  widow  suing  in  her  own  capacity 
could  not  be  maintained;  in  case  of  death,  suit  must  be  brought  by 
the  ' '  personal  representative ' '  as  required  by  the  act.  Judge  Nor- 
ton i's  ruling  has  since,  in  other  cases,  been  sustained  by  the  national 
Supreme  Court.     (See  §  1S9,  infra.) 


SCOPE,  VALIDITY  AND  EFFECT  OF  ACT  7 

tion  6  provides  that  any  action  under  the  act  is 
barred  after  two  years.  Section  8  provides  that  the 
act  does  not  limit  the  obligation  of  a  common  carrier 
under  any  other  federal  law  or  affect  any  pending 
suits  under  the  1906  Act. 

After  conflicting  decisions  by  state  and  federal 
courts,  the  constitutionality  and  validity  of  this  act 
in  all  its  parts  was  presented  to  the  Supreme  Court 
of  the  United  States  and  the  act  was  declared  con- 
stitutional on  January  15,  1912.^  In  a  later  case 
the  Supreme  Court  held  §  5  of  the  national  act 
valid.*^  These  decisions  render  any  discussion  as  to 
the  validity  of  the  Act  of  1908  purely  academic  and 
such  questions  are  now,  so  far  as  all  other  courts 
are  concerned,  finally  and  conclusively  decided. 

§  5.  Extent  of  Power  Exercised  by  Congress  in 
Passing  the  Federal  Act. — A  troublesome  question 
to  the  practitioner  will  frequently  arise  as  to  whether 
the  facts  of  his  case  create  a  cause  of  action  under 
the  federal  act,  or  under  the  laws  of  the  state  since 
the  remedy  in  each  realm  is  exclusive.  Many  con- 
flicting decisions  which  will  be  reviewed  later,  have 
already  been  handed  down  defining  or  holding  when 
a  railroad  company  is  engaged  in  interstate  com- 
merce '^  or  when  a  servant  is  employed  in  such  com- 
merce,^ for  under  the  federal  act  both  must  be  so 
engaged  to  render  the  statute  applicable  and  the 

5.  Second  Employers'  LiabUity  Cases,  223  U.  S.  1,  56  L.  Ed.  327, 
1  N.  C.  C.  A.  875,  38  L.  R.  A.  (N.  S.)  44. 

6.  PhUadelphia,  B.  &  W.  E.  Co.  v.  Schubert,  224  U.  S.  603,  56 
L.  Ed.  911,  6  N.  C.  C.  A.  103n. 

7.  Chapter  IV,  infra. 

8.  Chapter  III,  infra. 


8  INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

remedy  therein  provided  is  then  exclusive.  In  the 
Second  Employers'  Liability  Cases ^  the  Supreme 
Court  of  the  United  States  laid  down  general  rules 
to  be  applied  in  determining  when  a  railroad  em- 
ploye is  engaged  in  interstate  commerce,  but  these 
rules,  necessarily  so,  were  vague  and  indefinite  so 
that  the  question  of  when  a  railroad  company  is 
employed  in  interstate  commerce  or  when  a  servant 
is  employed  in  such  commerce,  was  necessarily  left 
to  be  determined  by  all  the  facts  of  each  particular 
case,  and  conflicting  views  of  courts  on  similar  facts 
have  been  the  result. 

These  general  rules  as  to  the  extent  and  power 
of  Congress  in  dealing  with  the  relation  of  railroads 
and  their  employes  while  the  one  is  engaged  and  the 
other  is  employed  in  interstate  commerce,  were  sum- 
marized by  the  court  as  follows:  "The  clauses  in  the 
Constitution  (Art.  1,  §  8,  c.  3  and  18)  which  confer 
upon  Congress  the  power  Ho  regulate  commerce 
*  *  *  among  the  several  States'  and  'to  make 
all  laws  which  shall  be  necessary  and  proper'  for 
the  purpose  have  been  considered  by  this  court  so 
often  and  in  such  varied  connections  that  some 
propositions  bearing  upon  the  extent  and  nature  of 
this  power  have  come  to  be  so  firmly  settled  as  no 
longer  to  be  open  to  dispute,  among  them  being 
these:  1.  The  term  'commerce'  comprehends  more 

9.  223  U.  S.  1,  56  L.  Ed.  327,  1  N.  C.  C.  A.  875,  38  L.  B.  A.  (N.  S.) 
44.  The  Second  Employers'  Liability  Cases  included  the  following 
cases  appealed  from  different  courts  and  decided  by  the  United  States 
Supreme  Court  at  the  same  time  and  in  one  opinion  in  which  all  the 
judges  concurred:  Mondou  v.  New  York,  N.  H.  &  H.  E.  Co.;  Northern 
P.  Ry.  Co.  V.  Babcock;  New  York,  N.  H.  &  H.  E.  Co.  v.  Walsh;  Walsh 
V.  New  York,  N.  H.  &  H.  E.  Co. 


SCOPE,  VALIDITY  AND  EFFECT  OF  ACT  9 

than  the  mere  exchange  of  goods.  It  embraces  com- 
mercial intercourse  in  all  its  branches,  including 
transportation  of  passengers  and  property  by  com- 
mon carriers,  whether  carried  on  by  water  or  by  land. 
2.  The  phrase  'among  the  several  States'  marks  the 
distinction,  for  the  purpose  of  governmental  regula- 
tion, between  commerce  which  concerns  two  or  more 
States  and  commerce  which  is  confined  to  a  single 
State  and  does  not  affect  other  States,  the  power  to 
regulate  the  former  being  conferred  upon  Congress 
and  the  regulation  of  the  latter  remaining  with  the 
States  severally.  3.  'To  regulate,'  in  the  sense  in- 
tended, is  to  foster,  protect,  control  and  restrain, 
with  appropriate  regard  for  the  welfare  of  those  who 
are  immediately  concerned  and  of  the  public  at  large. 
4.  This  power  over  commerce  among  the  States,  so 
conferred  upon  Congress,  is  complete  in  itself,  ex- 
tends incidentally  to  every  instrument  and  agent  by 
which  such  commerce  is  carried  on,  may  be  exerted 
to  its  utmost  extent  over  every  part  of  such  com- 
merce, and  is  subject  to  no  limitations  save  such  as 
are  prescribed  in  the  Constitution.  But,  of  course, 
it  does  not  extend  to  any  matter  or  thing  which  does 
not  have  a  real  or  substantial  relation  to  some  part 
of  such  commerce.  5.  Among  the  instruments  and 
agents  to  which  the  power  extends  are  the  railroads 
over  which  transportation  from  one  state  to  another 
is  conducted,  the  engines  and  cars  by  which  such 
transportation  is  effected,  and  all  who  are  in  any 
wise  engaged  in  such  transportation,  whether  as 
common  carriers  or  as  their  employes.  6.  The  duties 
of   common    carriers   in   respect   of   the   safety   of 


10  INJURIES  TO  INTEESTATE  EMPLOYES  ON  EAILEOADS 

their  employes,  while  both  are  engaged  in  commerce 
among  the  States,  and  the  liability  of  the  former  for 
injuries  sustained  by  the  latter,  while  both  are  so 
engaged,  have  a  real  or  substantial  relation  to  such 
commerce,  and  therefore  are  within  the  range  of 
this  power.  Cooley  v.  Board  of  Wardens,  12  How. 
(U.  S.)  299,  315-317  (11  L.  Ed.  996, 1003, 1  N.  C.  C.  A. 
882);  The  Lottawanna,  21  Wall.  (U.  S.)  558  (22  L. 
Ed.  654) ;  Sherlock  v.  AUing,  93  U.  S.  99,  103-105 
(23  L.  Ed.  819);  Smith  v.  Alabama,  124  U.  S.  465, 
479  (31  L.  Ed.  508);  Nashville,  etc.,  Ry.  Co.  v. 
Alabama,  128  U.  S.  96,  99  (52  L.  Ed.  352) ;  Peirce  v. 
Van  Dusen  (24  C.  C.  A.  280),  78  Fed.  693,  698-700 
(69  L.  R.  A.  705);  Baltimore  &  Ohio  R.  R.  Co.  v. 
Baugh,  149  U.  S.  368,  378  (37  L.  Ed.  772) ;  Patterson 
V.  Bark  Eudora,  190  U.  S.  169,  176  (47  L.  Ed.  1002) ; 
Johnson  v.  Southern  Pacific  Co.,  196  U.  S.  1  (49  L. 
Ed.  363,  3  N.  C.  C.  A.  784) ;  Schlemmer  v.  Buffalo, 
etc.,  Ry.  Co.,  205  U.  S.  1  (51  L.  Ed.  681,  1  N.  C.  C. 
A.  859n,  4  N.  C.  C.  A.  483n) ;  Employers'  Liability 
Cases,  207  U.  S.  463,  495  (52  L.  Ed.  297);  Adair  v. 
United  States,  208  U.  S.  161, 176, 178  (52  L.  Ed.  436) ; 
Baltimore  &  Ohio  R.  R.  Co.  v.  Interstate  Commerce 
Commission,  221  U.  S.  612,  618  (55  L.  Ed.  878); 
Southern  Railway  Co.  v.  United  States,  222  U.  S.  20 
(56  L.  Ed.  72,  3  N.  C.  C.  A.  822)." 

§6.  Amendments  of  1910.— In  1910  Congress 
passed  two  important  amendments  to  the  Federal 
Employers'  Liability  Act.  One  provides  that  any 
action  under  the  act  may  be  brought  in  a  circuit 
court  of  the  United  States  in  the  district  of  the 
residence  of  the  defendant,  or  in  which  the  canse  of 


SCOPE,    VAUDITY    AND    EFFECT    OF   ACT  11 

action  arose  or  in  which  the  defendant  shall  be  doing 
business  at  the  time  of  commencing  such  action,  and 
further  provides  that  the  jurisdiction  of  the  courts 
of  the  United  States  shall  be  concurrent  with  that 
of  the  courts  of  the  several  states,  and  any  case 
arising  under  the  act  and  brought  in  any  state  court 
shall  not  be  removable  to  any  court  of  the  United 
States.  The  second  amendment  provides,  that,  * '  any 
right  of  action  given  by  this  act  to  a  person  suffering 
injury  shall  survive  to  his  or  her  personal  repre- 
sentative, for  the  benefit  of  the  surviving  widow  or 
husband  and  children  of  such  employe  and,  if  none, 
then  of  such  employe's  parents,  and,  if  none,  then  of 
the  next  of  kin  dependent  upon  such  employe,  but 
in  such  cases  there  shall  be  only  one  recoveiy  for  the 
same  injury."  ^'^ 

§  7.  Effect  Upon  State  Laws. — As  to  all  injuries 
or  deaths  happening  under  the  conditions  defined  in 
the  act,  i.  e.,  while  both  carrier  and  employe  are 
engaged  in  interstate  commerce,  the  remedy  therein 
given  is  exclusive  and  all  state  laws  in  so  far  as  they 
attempt  or  do  cover  the  same  field  are  superseded.  ^^ 

10.  The  first  amendment  was  the  result  of  the  decision  in  Hoxie 
V.  New  York,  N.  H.  &  H.  K.  Co.,  82  Conn.  352,  17  Ann.  Gas.  324, 
holding  that  Congress  did  not  intend  that  jurisdiction  of  cases  under 
the  act  shoxild  be  assumed  by  state  courts.  The  Hoxie  case  was 
overruled  later  in  Second  Employers'  Liability  Cases,  223  U.  S.  1,  56 
L.  Ed.  327,  1  N.  C.  C.  A.  875,  38  L.  R.  A.  (N.  S.)  44.  The  second 
amendment  resulted  from  the  decision  of  Judge  Rogers  in  Fulgam  v. 
Midland  V.  E.  Co.,  167  Fed.  660,  and  of  Judge  Lowell's  decision  in 
Walsh,  Adm  'r,  v.  New  York,  N.  H.  &  H.  R.  Co.,  173  Fed.  494,  holding 
that  a  right  of  action  given  to  the  injured  employe  under  the  act  of 
1908,  did  not  survive  to  his  personal  representative  in  the  event  of 
his  death,  but  as  at  common  law,  perished  with  the  injured  person, 

11.  Second  Employers'  Liability  Cases,  223  U.  S.  1,  56  L.  Ed.  327, 


12  INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

The  act  supersedes  all  state  and  territorial  laws 
over  the  matter  with  which  it  deals.  If  the  injury 
or  death  occurred  under  the  circumstances  defined 
in  the  act,  there  is  no  choice  of  remedy  except  the 
federal  act.  "^ince  the  act  is  exclusive  an  employe 
injured  while  employed  in  interstate  commerce  by 
a  common  carrier  by  railroad  also  engaged  in  such 
commerce,  must  bring  his  action  upon  this  statute 
and  no  other;  and  the  same  is  true  as  to  the  personal 
representatives  in  cases  of  death.^^  State  legislation 
on  contributory  negligence,  assumption  of  risk  or 
who  may  recover  in  case  of  death,  are  nugatory  as 
to  all  casualties  happening  under  the  conditions 
described  in  this  act,  that  is,  while  both  carrier  and 
employe  are  engaged  in  interstate  commerce.^ 

In  the  Mondou  case  (Second  Employers'  Liability 
Cases)  cited  in  the  notes,  Mr.  Justice  Van  Devanter, 

1  N.  C.  C.  A.  875,  38  L.  E.  A.  (N.  &'.)  44;  St.  Lonis,  I.  M.  &  S.  E. 
Co.  V.  Hesterly,  228  U.  S.  702,  57  L.  Ed.  1031; 'Illiiiois  C.  R.  Co.  v. 
Doherty's  Adm'r,  153  Ky.  363,  6  N.  C.  C.  A.  75n,  440n,  444n, 
47  L.  E.  A.  (N.  S.)  31n;  Eich  v.  St.  Louis  &  S.  F.  By.  Co.,  166  Mo. 
App.  379;  Seaboard  A.  L.  Ey.  Co.  v.  Horton,  233  U.  S.  492,  58  L.  Ed. 
1062,  6  N.  C.  C.  A.  75n,  101,  102n. 

12.  Michigan  C.  E.  Co.  v.  Vreeland,  227  U.  S.  59,  57  L.  Ed.  417, 
3  N.  C.  C.  A.  807,  Ann.  Cas.  1914  C  176n;  Gulf,  C.  &  S.  F.  Ey.  Co.  v. 
McGinnis,  228  U.  S.  173,  57  L.  Ed.  785,  3  N.  C.  C.  A.  806,  rev  'g  judg- 
ment in  same  case  reported  in  —  Tex.  Civ.  App.  — ,  147  S.  W, 
1188;  American  E.  Co.  v.  Birch,  224  U.  S.  547,  56  L.  Ed.  879,  rev'g 
same  case  reported  in  5  Porto  Rico  Fed.  Eep.  273;  Gee  v.  Lehigh 
VaUey  R.  Co.,  148  N.  Y.  Supp.  882. 

13.  Seaboard  A.  L.  Ey.  Co.  v.  Horton,  233  U.  S.  492,  58  L.  Ed. 
1062,  6  N.  C.  C.  A.  75n,  lOln,  102n;  St.  Louis,  S.  F.  &  T.  Ey.  Co.  v, 
Seale,  229  U.  &'.  156,  57  L.  Ed.  1129,  3  N.  C.  C.  A.  800,  Ann.  Caa. 
1914  C  156n;  DeAtley  v.  C.  &  O.  Ey.  Co,,  201  Fed.  591;  St.  Louis 
S.  W.  Ey.  Co.  V.  Brothers,  —  Tex.  Civ.  App.  — ,  165  S.  W.  488; 
Vaughn  v.  St.  Louis  &  S.  F.  Ey.  Co.,  177  Mo.  App.  155,  6  N.  C.  C.  A. 
75n,  438n,  439n;  Flanders  v.  Georgia  &  F.  Ey.  Co.,  —  Fla.  — ,  67 
So.  68;  Toledo,  St.  L.  &  W.  R.  Co.  v.  Slavln,  —  U.  S.  — .  decided 
Feb.  23,  1915. 


SCOPE,  VALIDITY  AND  EFFECT  OF  ACT         13 

speaking-  for  the  court,  said:  ^'The  third  question, 
whether  those  regulations  supersede  the  laws  of  the 
states  in  so  far  as  the  latter  cover  the  same  field, 
finds  its  answer  in  the  following  extracts  from  the 
opinion  of  Chief  Justice  Marshall  in  McCulloch  v. 
Maryland,  4  Wheat.  (U.  S.)  316  (4  L.  Ed.  579), 
(p.  405) :  'K  any  one  proposition  could  command  the 
universal  assent  of  mankind,  we  might  expect  it 
would  be  this — that  the  government  of  the  Union, 
though  limited  in  its  powers,  is  supreme  within  its 
sphere  of  action.  This  would  seem  to  result  neces- 
sarily from  its  nature.  It  is  the  government  of  all; 
its  powers  are  delegated  by  all;  it  represents  all, 
and  acts  for  all.  Though  any  one  state  may  be 
willing  to  control  its  operations,  no  State  is  willing 
to  allow  others  to  control  them.  The  nation,  on 
these  subjects  on  which  it  can  act,  must  necessarily 
bind  its  component  parts.  But  this  question  is  not 
left  to  mere  reason;  the  people  have,  in  express 
terms,  decided  it-,  by  saying,  'this  constitution,  and 
the  laws  of  the  United  States,  which  shall  be  made 
in  pursuance  thereof,  *  *  *  shall  be  the  supreme 
law  of  the  land, '  and  by  requiring  that  the  members 
of  the  state  legislatures,  and  the  officers  of  the  execu- 
tive and  judicial  departments  of  the  states,  shall 
take  the  oath  of  fidelity  to  it.  The  government  of 
the  United  States,  then,  though  limited  in  its  powers, 
is  supreme;  and  its  laws,  when  made  in  pursuance 
of  the  constitution,  form  the  supreme  law  of  the  land, 
'anything  in  the  constitution  or  laws  of  any  state, 
to  the  contrary  notwithstanding'  (p.  426).  This 
great  principle  is,  that  the  constitution  and  the  laws 


14  INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

made  in  pursuance  thereof  are  supreme;  that  they 
control  the  constitution  and  laws  of  the  respective 
states,  and  cannot  be  controlled  by  them.'  And 
particularly  apposite  is  the  repetition  of  that  prin- 
ciple in  Smith  v.  Alabama,  124  U.  S.  465,  473  (31 
L.  Ed.  508) :  'The  grant  of  power  to  Congress  in  the 
Constitution  to  regulate  commerce  with  foreign 
nations  and  among  the  several  states,  it  is  conceded, 
is  paramount  over  all  legislative  powers  which,  in 
consequence  of  not  having  been  granted  to  Congress, 
are  reserved  to  the  States.  It  follows  that  any 
legislation  of  a  State,  although  in  pursuance  of  an 
acknowledged  power  reserved  to  it,  which  conflicts 
with  the  actual  exercise  of  the  power  of  Congress 
over  the  subject  of  commerce,  must  give  way  before 
the  supremacy  of  the  national  authority.'  True, 
prior  to  the  present  act  the  laws  of  the  several  states 
were  regarded  as  determinative  of  the  liability  of 
employers  engaged  in  interstate  commerce  for  in- 
juries received  by  their  employes  while  engaged  in 
such  commerce.  But  that  was  because  Congress, 
although  empowered  to  regulate  that  subject,  had 
not  acted  thereon,  and  because  the  subject  is  one 
which  falls  within  the  police  power  of  the  States 
in  the  absence  of  action  by  Congress.  Sherlock  v. 
Ailing,  93  U.  S.  99  (23  L.  Ed.  819) ;  Smith  v.  Alabama, 
124  U.  S.  465,  473,  482  (31  L.  Ed.  508);  Nashville, 
etc.,  Railway  v.  Alabama,  128  U.  S.  96,  99  (52  L. 
Ed.  352);  Eeid  v.  Colorado,  187  U.  S.  137,  146  (47 
L.  Ed.  108).  The  inaction  of  Congress,  however,  in 
no  wise  affected  its  power  over  the  subject.  The 
Lottawanna,  21  WaU.   (U.  S.)  558,  581  (22  L.  Ed. 


SCOPE,  VALIDITY  AND  EFFECT  OF  ACT         15 

654) ;  Gloucester  Ferry  Co.  v.  Pennsylvania,  114  U. 
S.  196,  215  (29  L.  Ed.  158).  And  now  that  Congress 
has  acted,  the  laws  of  the  States,  in  so  far  as  they 
cover  the  same  field,  are  superseded,  for  necessarily 
that  which  is  not  supreme  must  yield  to  that  which 
is.  GuLf,  Colorado  and  Santa  Fe  Railway  Co.  v. 
Hefley,  158  U.  S.  98,  104  (39  L.  Ed.  910);  Southern 
Eailway  Co.  v.  Eeid,  222  U.  S.  424  (56  L.  Ed.  257); 
Northern  Pacific  Railway  Co.  v.  Washington,  222 
U.  S.  370  (56  L.  Ed.  237)." 

§  8.  Decisions  of  National  Courts  Constming  Act 
Control. — In  construing  the  Federal  Employers' 
Liability  Act,  the  decisions  of  the  national  courts 
control  over  those  of  the  state  courts.  For  example, 
in  determining  when  a  carrier  is  guilty  of  negligence 
under  the  act;  when  an  employe  assumes  the  risk; 
what  proof  creates  a  dependency  in  death  cases 
within  the  meaning  of  the  act ;  whether  the  doctrine 
of  res  ipsa  loquitur  applies;  whether  there  is  any 
evidence  tending  to  show  liability  sufficient  for  the 
case  to  be  submitted  to  the  jury;  the  measure  of 
damages  and  instructions  thereon,  are  all  matters 
upon  which  the  decisions  of  the  national  courts  con- 
trol,^^     Where  the  decisions  of  the  federal  courts 

14.  St.  Louis,  I.  M.  &  S.  Ey.  Co.  v.  McWhirter,  229  U.  S,  265,  57 
L.  Ed.  1179,  rev'g  145  Ky.  427;  Seaboard  A.  L.  Ry.  Co.  v.  Horton, 
233  U.  &'.  492,  58  L.  Ed.  1062,  6  N.  C.  C.  A.  75n,  101,  102n;  Michigan 
C.  R.  Co.  V.  Vreeland,  227  U.  S.  59,  57  L.  Ed.  417,  3  N.  C.  C.  A.  807, 
Ann.  Cas.  1914  C  176n ;  Charleston  &  W.  C.  R.  Co.  v.  Brown,  —  Ga.  — , 
79  S.  E.  932;  McAdow  v.  Kansas  City  W.  E.  Co.,  —  Mo.  App.  — , 
6  N.  C.  C.  A.  76n,  206n,  233n,  164  S.  W.  188 ;  Hardwick  v.  Wabash  R. 
Co.,  181  Mo.  App.  156;  Montgomery  v.  Southern  P.  Ry.  Co.,  64  Ore. 
597,  47  L.  R.  A.  (N.  S.)  13n;  Horton  v.  Oregon,  W.  R.  &  N.  Co.,  72 
Wash.  503,  3  N.  C.  C.  A.  784,  47  L.  R.  A.  (N.  S.)  8n;  Lauer  v. 
Northern   Pac.   Ry.   Co.,  —   Wash.  — ,   145  Pac.   606.     Contra:     On 


16  INJUEIES  TO  INTERSTATE  EMPLOYES  ON  RAILEOADS 

on  a  question  under  the  act  are  conflicting,  then  a 
state  court  will  follow  those  decisions  of  the  national 
courts  which  appear  to  it  to  rest  on  the  better 
reason.^^ 

§  9.  Laws  of  State  Control  as  to  Procedure. — In 
all  actions  under  the  Federal  Employers'  Liability 
Act  prosecuted  in  the  state  courts,  the  rules  of  prac- 
tice and  procedure  are  governed  by  the  laws  of  the 
states  where  the  cases  are  pending.  ^'^  Questions  as  to 
whether  amendments  shall  be  permitted  to  petitions 
or  answers;  when  motions  to  elect  should  be  sus- 
tained or  overruled;  the  rules  of  evidence;  variances; 
excessiveness  of  verdicts  and  similar  questions  of 
practice  and  procedure,  are  matters  to  be  determined 
solely  by  the  state  courts  in  accordance  with  the 
statutes  of  the  state  and  their  rules  applying  the 
same.^^ 

assumption  of  risk,  Fish  v.  Chicago,  E.  I.  &  P.  Ey.  Co.,  —  Mo.  — ,  172 
S.  W.  340;  as  to  what  is  negligence  under  the  act,  Louisville  &  N.  E. 
Co.  V.  Johnson,  —  Ky.  — ,  171  S.  W.  847.     (See  §  18,  infra.) 

15.  Euck  V.  Chicago,  M.  &  St.  P.  Ey.  Co.,  153  Wis.  158,  6  N.  C. 
C.  A.  204n. 

16.  Brinkmeier  v.  Missouri  P.  Ey.  Co.,  224  U.  S.  268,  56  L.  Ed. 
758,  3  N.  C.  C.  A.  795n,  aff'g  same  case  reported  in  81  Kan.  101; 
Fleming  v.  North  C.  E.  Co.,  106  N.  C.  196,  6  N.  C.  C.  A.  78n,  229n. 

17.  Wabash  E.  Co.  v.  Hayes,  234  U.  S.  86,  58  L.  Ed.  1227,  6  N.  C. 
C.  A.  224;  &'outhern  By.  Co.  v.  Bennett,  233  U.  S.  80,  58  L.  Ed.  860; 
LouisviUe  &  N.  E.  Co.  v.  Moore,  156  Ky.  708,  4  N.  C.  C.  A.  227n, 

5  N.  C.  C.  A.  771n;  Louisville  &  N.  E.  Co.  v.  Strange,  156  Ky.  439, 

6  N.  C.  C.  A.  75n,  82n,  83n,  185n;  Midland  V.  E.  Co.  v.  Ennis, 
—  Ark.  — ,  159  S.  W.  215 ;  Bouchard  v.  Central  V.  E.  Co.,  87  Vt.  399, 
6  N.  C.  C.  A.  78n,  81n;  Bankson  v.  Illinois  C.  E.  Co.,  196  Fed.  171; 
Armbmster  v.  Chicago,  E.  I.  &  P.  Ey.  Co.,  —  Iowa  — ,  6  N.  C.  C.  A. 
195n,  147  N.  W.  337 ;  Sweet  v.  Chicago  &  N.  W.  Ey.  Co.,  157  Wis.  400, 
6  N.  C.  C.  A.  78n,  94n,  232n,  451n;  Burnett  v.  Atlantic  C.  L.  Co.,  163 
N.  C.  186,  6  N.  C.  C.  A.  103n,  104n ;  Tinkham  v.  Boston  &  M.  E.  Co., 
77  N.  H.  Ill,  6  N.  C.  C.  A.  81n,  233n;  Atkinson  v.  Bullard,  —  Ga.  — , 


SCOPE,  VALIDITY  AND  EFFECT  OF  ACT         17 

6  N.  C.  C.  A.  80n,  183n,  80  S.  E.  220 ;  Louisville  &  N.  R.  Co.  v.  Stew- 
art, 156  Ky.  550,  6  N.  C.  C.  A.  79n,  447n,  450n,  454n;  Kansas  City  S. 
Ry.  Co.  V.  Leslie,  —  Ark.  — ,  6  N.  C.  C.  A.  446n,  447n,  453n,  454n,  167 
S.  W.  92;  Winters  v.  Minneapolis  &  St.  L.  R.  Co.,  —  Minn.  — , 
6  N.  C.  C.  A.  78n,  201n,  148  N.  W.  106;  Gibson  v.  Bellingham  &  N. 
Ry.  Co.,  213  Fed.  488;  State  statutes  requiring  notice  of  injury  not 
applicable  under  Federal  Act.  El  Paso  &  N.  E.  Ry.  Co.  v.  Gutierrez, 
215  U.  S.  87,  54  L.  Ed.  106. 


Boberts  Liabilities— 2 


CHAPTER  II 

NEGLIGENCE  UNDEE  THE  FEDERAL  ACT 

§  10.  The  Statutory  Provision. 

§  11.  Two  Branches  of  Negligence  Under  First  Section. 

§  12.  Negligence  Criterion  of  Liability  Under  National  Statute. 

§  13.  Negligence  Must  Be  Proximate  Cause  of  Injury. 

§  14.  Actionable  Negligence  Must  Ha.ve  Natural  Relation  to  Employ- 
ment. 

§  15.  Meaning  of  the  Phrase  ' '  In  Whole  or  in  Part. ' ' 

§  16.  Recovery  Cannot  Be  Defeated  by  Calling  Plaintiff 's  Act  Proxi- 
mate Cause  When  Defendant's  Negligence  Is  Part  of 
Causation. 

§  17.  Casualties  Due  to  Sole  Negligence  of  Employes. 

§  18.  In  Actions  Under  Federal  Act  Prosecuted  in  State  Courts 
Decisions  of  National  Courts  Control  in  Determiniag  Negli- 
gence— Contrary  Rulings. 

§  19.  Negligence  of  Human  Agencies  Not  Limited  to  FeUow  Servants 
as  Construed  Under  Common  Law. 

§  20.  Statute  Covers  Negligent  Act  of  Intrastate  Employes  and 
Defects  in  Instrumentalities  Used  Solely  in  Intrastate  Com- 
merce. 

§  21.  Negligence  Need  Not  Be  Proven  When  Violation  of  Federal 
Safety  Appliance  Act  Is  Cause  of  Injury. 

§  22.  Applicability  of  Doctrine  of  Bes  Ipsa  Loquitur  Under  Federal 
Act — Conflicting   Rulings. 

§  23.  Cases  Under  Federal  Act  in  Which  the  Facts  Were  Held  to 
Show  Actionable  Negligence. 

§  24.  Cases  Under  Federal  Act  in  Which  the  Facts  Were  Held  Not 
to  Show  Actionable  Negligence. 

§  25.  WUlful  Wrongs  Not  Within  Terms  of  Act. 

§  10.  The  Statutory  Provisioii. — The  first  section 
of  the  Federal  Employers'  Liability  Act  provides 
that  every  common  carrier  by  rail  while  engaging 
in  interstate  commerce  and  while  the  servant  injured 
or  killed  is  employed  in  such  commerce,  is  liable  ' '  for 

18 


NEGLIGENCE    UNDER   THE   ACT  19 

such  injury  or  death  resulting  in  whole  or  in  part 
from  the  negligence  of  any  of  the  officers,  agents  or 
employes  of  such  carrier,  or  by  reason  of  any  defect 
or  insufficiency  due  to  its  negligence,  in  its  cars, 
engines,  appliances,  machinery,  track,  road-bed, 
works,  boats,  wharves,  or  other  equipments." 

§  11.  Two  Branches  of  Negligence  Under  First 
Section. — ^The  clause  relating  to  negligence  in  the 
first  section  of  the  federal  act  has  two  branches;  one 
governing  the  negligence  of  any  of  the  officers,  agents 
or  employes  of  the  carrier,  which  abolishes  the  com- 
mon law  fellow-servant  doctrine;  and  the  other 
relating  to  defects  and  insufficiencies  due  to  negli- 
gence in  the  railroad's  rolling  stock,  machinery, 
track,  road-bed,  works,  boats,  wharfs  or  other  equip- 
ment. These  two  clauses,  it  has  been  held,  cover  any 
and  all  negligent  acts  of  which  the  carrier  could  have 
been  guilty  under  the  common  law.^ 

§  12.  Negligence  Criterion  of  Liability  Under  Na- 
tional Statute. — Except  that  it  abolishes  the  common 
law  rule  of  non-liability  for  injuries  to  employes 
within  its  terms  due  to  negligence  of  fellow  servants, 
the  first  section  of  the  Federal  Employee'  Liability 
Act  which  defines  when  a  carrier  is  liable,  adopts 
the  common  law  rule  of  negligence  as  to  the  two 
branches  of  liability  mentioned.  Under  the  act,  the 
company  is  not  a  guarantor  of  the  safety  of  the  place 
of  work  or  of  the  machineiy  and  appliances  of  the 
company.  The  extent  of  its  duty  to  its  employes, 
is,  to  see  that  ordinary  care  and  prudence  are  exer- 
cised to  the  end  that  the  place  in  which  the  work 

1.  DeAtley  v.  Chesapeake  &  O.  E.  Co.,  201  Fed.  591, 


20  INJURIES  TO  INTERSTATE  EMPLOYES  ON  R.ULROADS 

is  to  be  performed  and  the  tools  and  appliances  of 
the  work  may  be  safe  for  the  workmen.-  To  convict 
a  defendant  railroad  company  nnder  the  first  section 
as  to  defects,  the  plaintiff  must  prove  the  existence 
of  the  defect  complained  of;  that  it  was  a  defect  of 
such  a  character  as  to  cause  its  existence  to  be  a 
negligent  failure  on  the  part  of  the  defendant  and 
that  the  defect  was  the  proximate  cause  of  the 
injury.3 

In  the  Horton  case,  cited  in  the  notes,  which  is  the 
leading  case  construing  the  first  section  of  the  federal 
act,  defining  when  a  carrier  by  railroad  is  liable, 
the  plaintiff  brought  suit  under  the  federal  act  in 
a  state  court  in  North  Carolina.  The  statute  of 
North  Carolina  provides  that  "any  servant  or  em- 
ploye of  any  railroad  company  operating  in  this 
state  who  shall  suffer  injury  to  his  person,  or  the 
personal  representative  of  any  such  servant  or 
employe  who  shall  have  suffered  death  in  the  course 
of  his  services  or  employment  with  such  company  by 
the  negligence,  carelessness  or  incompetence  of  any 
other  servant,  employe  or  agent  of  the  company,  or 

2.  Seaboard  A.  L.  Ry.  Co.  v.  Horton,  233  U.  S.  492,  58  L.  Ed.  1062, 
6  N.  C.  C.  A.  75n,  9on,  101,  102n,  rev'g  the  same  case  reported  iu 
162  N.  C.  424. 

3.  &'eaboard  A.  L.  Ey.  Co.  v.  Moore,  228  U.  S.  433,  57  L.  Ed.  907, 
3  N.  C.  C.  A,  812;  Helm  v.  Cincinnati,  N.  O.  &  T.  P.  Ry.  Co.,  156 
Ky.  240,  6  N.  C.  C.  A.  83n,  84n;  South  Covington  &  C.  St.  Ry.  Co.  v. 
Finan's  Adm'x,  153  Ky.  340.  Accord,  Long  v.  Southern  Ry.  Co., 
—  Ky.  — ,  159  S.  W.  779;  Louisville  &  N.  R.  Co.  v.  Kemp,  140  Ga. 
657,  6  N.  C.  C.  A.  75n,  196n;  Charleston  &  W.  C.  E.  Co.  v.  Brown, 
13  Ga.  App.  744;  Neil  v.  Idaho  &  W.  N.  E.  Co.,  22  Idaho  74; 
McCullough  V.  Chicago,  R.  I.  &  P.  R.  Co.,  —  Iowa  — ,  6  N.  C.  C.  A. 
78n,  449n,  451n,  142  N.  W.  67;  Owens  v.  Chicago  G.  W.  R.  Co.,  113 
Minn.  49. 


NEGLIGENCE   UNDER   THE   ACT  21 

by  any  defect  in  the  machinery,  ways  or  appliances 
of  the  company,  shall  be  entitled  to  maintain  an 
action  against  such  company. ' '  Notwithstanding  the 
fact  that  the  plaintiff  was  suing  solely  under  the 
national  statute,  the  trial  court  instructed  the  jury 
on  the  theory  that  this  statute  governed  in  deter- 
mining negligence  under  the  federal  act.  Upon  the 
issue  of  defendant's  negligence,  the  charge  to  the 
jury  was  in  part  as  follows :  "It  is  the  duty  of  the 
defendant  to  provide  a  reasonably  safe  place  for  the 
plaintiff  to  work,  and  to  furnish  him  with  reasonably 
safe  appliances  with  which  to  do  his  work."  An- 
other instruction  given  was:  "If  you  find  from  the 
evidence  that  it  (the  locomotive  engine)  was  turned 
over  to  him  without  the  guard,  and  if  you  further 
find  from  the  evidence  that  the  guard  was  a  proper 
safety  provision  for  the  use  of  that  gauge,  and  that 
it  was  unsafe  without  it,  then  the  defendant  did  not 
furnish  him  a  safe  place  and  a  safe  appliance  to  do 
his  work,  and  if  it  remained  in  that  condition  it  was 
continuing  negligence  on  the  part  of  the  defendant, 
and  if  he  was  injured  in  consequence  thereof,  if  you 
so  find  by  the  greater  weight  of  the  evidence,  you 
should  answer  the  first  issue  'Yes.'  " 

Condemning  these  instructions  as  being  improper 
under  the  federal  act,  Mr.  Justice  Pitney,  for  the 
court,  said :  ' '  iVnd  in  various  other  forms  the  notion 
was  expressed  that  the  duty  of  defendant  was  abso- 
lute with  respect  to  the  safety  of  the  place  or  work 
and  of  the  appliances  for  the  work.  *  *  *  jjj 
these  instructions  the  trial  judge  evidently  adopted 
the  same  measure  of  responsibility  respecting  the 


22  INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

character  and  safe  condition  of  tlie  place  of  work, 
and  the  appliances  for  the  doing  of  the  work,  that 
is  prescribed  by  the  local  statute.  But  it  is  settled 
that  since  Congress,  b}"  the  act  of  1908,  took  pos- 
session of  the  field  of  the  employers'  liability  to  em- 
I^loyes  in  interstate  transportation  by  rail,  all  state 
laws  upon  the  subject  are  superseded.  Second  Em- 
ployers' Liability  Cases,  223  U.  S.  1,  55  (56  L.  Ed. 
327,  IN.  CCA.  875,  38  L.R.  A.  [N.S.I  44).  *  *  * 
It  was  the  intention  of  Congress  to  base  the  action 
upon  negligence  only,  and  to  exclude  responsibility 
of  the  carrier  to  its  employes  for  defects  and  insuf- 
ficiencies not  attributable  to  negligence.  The  com- 
mon law  rule  is  that  an  employer  is  not  a  guarantor 
of  the  safety  of  the  place  of  work  or  of  the  machinery 
and  appliances  of  the  work ;  the  extent  of  its  duty  to 
its  employes  is  to  see  that  ordinary  care  and  pru- 
dence are  exercised,  to  the  end  that  the  place  in 
which  the  work  is  to  be  performed  and  the  tools  and 
appliances  of  the  work  may  be  safe  for  the  workmen. 
Hough  V.  Railway  Co.,  100  U.  S.  213,  217  (25  L.  Ed. 
612);  Washington  &  Georgetown  Railroad  Co.  v. 
McDade,  135  U.  S.  554,  570  (34  L.  Ed.  235) ;  Choctaw, 
Oklahoma  &  Gulf  R.  R.  Co.  v.  McDade,  191  U.  S.  64, 
67  (48  L.  Ed.  96).  To  hold  that  under  the  statute  the 
railroad  company  is  liable  for  the  injury  or  death  of 
an  employe  resulting  from  any  defect  or  insufficiency 
in  its  cars,  engines,  appliances,  etc.,  however  caused, 
is  to  take  from  the  act  the  words  'due  to  its  negli- 
gence.' The  plain  effect  of  these  words  is  to  condi- 
tion the  liability  upon  negligence;  and  had  there 
been  doubt  before  as  to  the  common  law  rule,  cer- 


NEGLIGENCE   UNDER   THE   ACT  23 

tainly  the  Act  now  limits  the  responsibility  of  the 
company  as  indicated.  The  instructions  above 
quoted  imposed  upon  the  employer  an  absolute 
responsibility  for  the  safe  condition  of  the  appli- 
ances of  the  work,  instead  of  limiting  the  responsi- 
bility to  the  exercise  of  reasonable  care.  In  effect, 
the  jury  was  instructed  that  the  absence  of  the  guard 
glass  was  conclusive  evidence  of  defendant's  negli- 
gence.   In  this  there  was  error. ' '  •* 

§  13.  Negligence  Must  Be  Proximate  Cause  of 
Injury. — For  the  plaintiff  to  recover  under  the  Fed- 
eral Employers'  Liability  Act  it  is  not  sufficient  that 
he  prove  negligence  and  injury  under  conditions 
within  the  terms  of  the  act.  To  create  a  jury  issue, 
the  plaintiff  must  introduce  proof  tending  to  show 
that  the  alleged  negligence  was  the  proximate  cause 
of  the  damage.  The  character  of  evidence  necessary 
to  prove  such  causation  must  depend  largely  upon 
the  circumstances  of  each  case.  The  inquiry  whether 
proof  having  such  tendency  has  been  introduced,  is 
not  to  be  solved  by  indulging  in  mere  surmises  or 
conjecture  or  by  resorting  to  imaginary  possibili- 
ties, for  to  do  so  would  but  resolve  the  question  to  the 
generic  rule  of  liability  as  an  insurer.  Applying 
these  principles  to  a  case  under  the  act  where  the 
negligence  charged  was  a  violation  of  the  national 
Hours  of  Service  Act,  the  national  Supreme  Court 

4.  The  court,  in  speaking  of  the  liability  under  the  Federal  Act  in 
this  ease,  was  considering  causes  of  injuries  or  deaths  not  included  in 
the  Federal  Safety  Appliance  Act.  If  the  cause  of  the  injury  or 
death  of  an  employe  on  an  interstate  railroad  is  due  to  violation  of 
the  Federal  Safety  Appliance  Act,  no  negligence  need  be  shown. 
Section  21,  infra. 


24  INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

held  that  proof  of  working  overtime  does  not  create 
an  unconditional  liability  for  accidents  in  the  ab- 
sence of  proof  showing  a  connection  between  the 
accident  and  the  working  overtime.^ 

§  14.  Actionable  Negligence  Must  Have  Natural 
Relation  to  Employment. — The  carrier  is  not  liable 
for  every  act  of  negligence  causing  injury  to  one 
employe  by  another.  The  negligent  act  causing  the 
injury  or  death  must  have  been  committed  while  the 
employe  at  fault  was  in  the  prosecution  of  the  car- 
rier's business.  Where  the  negligent  act  which 
causes  an  injury  to  or  the  death  of  an  employe  had 
no  relation  whatever  to  the  employment  the  carrier 
is  not  liable  for  the  employe  at  fault  must  have  been, 
when  committing  the  act,  within  the  scope  of  his 
employment.^  And  if  an  employe  is  injured  or  killed 
at  a  time  and  place  and  from  a  cause  disconnected 
with  his  employment  for  the  carrier,  the  carrier  is 
not  liable  for  the  statute  requires  the  servant 
injured  to  have  been  at  the  time  employed  in  inter- 
state commerce.^ 

5.  St.  Louis,  I.  M.  &  S.  Ey.  Co.  v.  McWhirter,  229  U.  &'.  265,  57 
L.  Ed.  1179,  reversing  same  case  reported  in  145  Ky.  427;  Helm  v. 
Cincinnati,  N.  O.  &  T.  P.  R.  Co.,  156  Ky.  240,  6  N.  C.  C.  A.  83n,  84n. 

6.  Hobbs  V.  C.  N.  Ey.  Co.,  —  Wash.  — ,  6  N.  C.  C.  A.  84n,  90n,  142 
Pac.  20;  Eief  v.  Great  N.  Ey.  Co.,  —  Minn.  — ,  148  N.  W.  309;  Mis- 
souri, K.  &  T.  Ey.  Co.  V.  West,  —  Okla.  — ,  134  Pac.  655 ;  Cincinnati, 
N.  O.  &  T.  P.  Ey.  Co.  v.  Wilson,  —  Ky.  — ,  171  S.  W.  430;  Eeeve  v. 
Northern  P.  Ey.  Co.,  —  Wash.  — ,  144  Pac.  63;  Martin  v.  Atchison, 
T.  &  S.  F.  Ey.  Co.,  —Kan.  — ,  145  Pac.  849;  Moyse  v.  Northern  P. 
Ey.  Co.,  41  Mont.  272. 

7.  Padgett  v.  Seaboard  A.  L.  Ey.  Co.,  —  S.  C.  — ,  83  S.  E.  633; 
Sanders  v.  Charleston  &  W.  C.  Ey.  Co.,  —  S.  C.  — ,  6  N.  C.  C.  A. 
200n,  81  S.  E.  283;  Ewald  v.  Chicago  &  N.  Wu  E.  Co.,  70  Wis.  420, 
5  Am.  &t.  Eep.  178;  Hurst  v.  Chicago,  R.  I.  &  P.  E.  Co.,  49  Iowa  76; 
Dickinson  v.  West  End  St.  E.  Co.,  177  Ma^s,  365,  52  L.  E.  A.  110. 


NEGLtlGENCE   UNDER   THE   ACT  25 

In  Reeve  v.  Northern  P.  Ry.  Co.,  cited  in  the  notes, 
plaintiff  was  a  laborer  in  the  employ  of  the  railroad 
company  and,  as  a  part  of  his  duties,  supplied  bag- 
gage cars  of  the  defendant  with  water  and  fuel. 
When  injured  he  was  sitting  on  the  floor  of  a  bag- 
gage car  in  the  door  with  his  feet  hanging  outside  of 
the  door  resting  on  the  iron  steps  or  stirrups  which 
hung  below.  While  so  sitting  two  other  employes  of 
the  company  began  wrestling  or  scuffling  in  the  body 
of  the  car  and  while  so  engaged,  whether  inten- 
tional or  not  does  not  appear  in  the  evidence,  one 
of  them  brushed  against  or  pushed  the  plaintiff, 
causing  him  to  fall  to  the  ground  and  he  sustained 
injuries.  Under  these  facts,  in  an  action  under  the 
Federal  Employers'  Liability  Act,  the  court,  in  de- 
nying a  recovery,  held  that  a  raili'oad  company  was 
not  liable  unless  the  negligent  act  occurred  while 
the  employes  were  doing  some  act  required  of  them 
in  the  prosecution  of  the  carrier's  business  and  that 
the  federal  statute  was  not  intended  to  cover  neg- 
ligent acts  of  an  employe  in  no  way  connected  with 
the  business,  the  prosecution  of  which  he  was  em- 
ployed to  aid. 

In  Sanders  v.  Charleston  &  W.  C.  Ry.  Co.,  also 
cited  in  the  notes,  the  plaintiff  was  a  track  laborer 
and  during  working  hours  assisted  a  gang  in  relay- 

A  brakeman  on  an  interstate  train  after  reaching  the  terminal  with 
his  train  and  before  he  was  discharged  for  the  day,  went  into  a 
saloon  near  the  railroad  yards  to  get  a  drink.  While  returning  to  the 
yards  he  was  struck  and  injured  by  a  car,  due  to  the  negligence  of 
other  employes.  The  court  held  that  notwithstanding  the  fact  that 
he  was  returning  from  a  personal  errand,  he  was  nevertheless  em- 
ployed in  interstate  commerce.  Grober  v.  Duluth,  S.  S.  &  A.  By.  Co., 
—  Wis.  — ,  150  N.  W.  489. 


26  INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

ing  rails  on  the  defendant 's  lines  of  railway  and  had 
been  so  engaged  for  some  weeks.  At  night  he  slept 
on  a  bunk  in  a  shanty  car  on  a  work  train  which 
stood  on  a  side  track.  While  asleep  at  night  in  that 
car  he  was  injured  in  a  collision  with  another  train. 
The  Supreme  Court  of  South  Carolina,  under  these 
facts,  held  that  the  plaintiff  at  the  time  of  his  injury 
was  engaged  in  interstate  commerce.  In  answering 
the  contention  of  counsel  that  the  plaintiff  was  not 
at  the  time  employed  in  interstate  commerce,  the 
court  said:  "When  the  plaintiff  was  in  the  bunk 
of  his  shanty  in  'sleep  that  knits  up  the  ravelled 
sleeve  of  care'  and  getting  strength  to  lay  rails 
next  day,  the  law  imputed  to  him  actual  service  on 
the  track  and  extended  to  him  the  rights  of  such  a 
worker;  'for  the  letter  (of  the  law)  killeth  but  the 
spirit  giveth  life.'  "  Notwithstanding  the  pre- 
eminent authority  cited  and  quoted  from  to  fortify 
the  decision,  the  ruling  of  the  court  in  this  case  was 
palpably  erroneous,  for  railroad  employes  while 
asleep  at  night  and  not  on  duty  are  not  then  "em- 
ployed by  the  carrier  in  interstate  commerce,"  no 
matter  whether  they  are  taking  their  rest  and  sleep 
in  their  own  homes  or  in  places  furnished  them  by 
the  railroad  company  by  reason  of  the  transitory 
nature  of  their  work. 

In  Padgett  v.  Seaboard  A.  L.  Ry.  Co.,  cited,  an- 
other case  decided  by  the  Supreme  Court  of  South 
Carolina,  an  engineer  came  into  a  roundhouse  with 
his  engine  at  10 :30  p.  m.  His  regular  course  of  duty 
required  him  to  leave  the  same  place  at  6:00  o'clock 
on  the  next  morning.    Close  to  the  roundhouse  the 


NEGLIGENCE   UNDER   THE   ACT  27 

railroad  company  had  a  small  boarding  house  for 
the  convenience  of  its  trainmen,  but  it  was  managed 
by  a  private  party.  The  engineer  after  leaving  his 
engine  at  the  roundhouse,  found  the  boarding  house 
was  full  and  he  then  returned  into  the  roundhouse 
and,  climbing  into  an  engine,  went  to  sleep.  About 
4:30  a.  m.  the  engine  in  which  he  was  asleep  was 
taken  out  of  the  roundhouse  to  a  coal  chute  in  the 
yards.  There  the  engineer  waked  up  and  got  off  of 
the  engine.  He  inquired  where  his  engine  was  and 
was  told  that  it  was  in  the  roundhouse  on  a  certain 
track.  He  was  last  seen  alive  going  towards  the 
roundhouse.  At  the  time  he  was  due  to  leave  that 
morning  he  could  not  be  found  and  his  train  departed 
without  him.  Later  in  the  morning  he  was  found  in 
an  open  uncovered  pit  in  the  roundhouse,  dead.  His 
engine  had  been  standing  with  the  step  over  this  pit, 
which  was  about  eight  feet  deep.  In  an  action  for 
damages  brought  under  the  federal  act  for  his  death 
it  was  contended  that  he  was  not  at  the  time  em- 
ployed in  interstate  commerce.  There  was  evidence 
introduced  to  show  that  the  engine  when  it  was 
brought  into  the  yard  the  night  before  needed  re- 
pairs and  that  the  rules  required  the  engineer  to 
inspect  his  engine  about  half  an  hour  before  leaving 
time.  There  was  no  evidence  that  the  engineer  was 
forbidden  to  inspect  his  engine  before  that  time; 
but  there  was  evidece  that  if  the  inspection  at  the 
required  hour  disclosed  the  repairs  had  not  been 
made,  the  engine  would  have  to  be  returned  to  the 
roundhouse  for  that  purpose  and  that  the  repairs 
woujd  require  time  and  cause  delay.    Under  these 


28  INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

facts  the  court  held  that  the  jury  was  justified  in 
finding  that  the  engineer  at  the  time  of  his  death  was 
employed  in  interstate  commerce,  Judges  Hydrick 
and  Gage  dissenting. 

In  Cincinnati,  N.  O.  &  T.  P.  Ry.  Co.  v.  Wilson, 
cited  in  the  notes,  a  section  foreman  on  a  train  stand- 
ing on  the  passing  track  at  a  station,  erroneously 
thinking  that  another  train  approaching  at  a  rapid 
rate  of  speed  was  about  to  collide  with  it,  warned 
Ms  men  to  jump,  which  they  did,  the  foreman  with 
them.  The  decedent,  one  of  the  section  men  under 
him,  ran  across  the  main  line  of  the  railroad  at  that 
place  and  was  struck  and  killed  by  the  other  train. 
Answering  a  contention  that  the  foreman  was  not 
acting  within  the  course  of  his  employment,  the 
court  held  that  the  act  of  the  foreman  in  shouting 
and  warning  the  men  was  one  within  the  scope  of 
his  employment  and  was  an  act  fairly  imputable  to 
the  master  imposing  legal  liability  therefor. 

In  Rief  v.  Great  N.  Ry.  Co.,  cited  in  the  notes,  the 
plaintiff  was  a  ''student  brakeman"  receiving  no 
compensation  from  the  railroad  company.  For  12 
days  previous  to  the  injury  he  had  been  upon  defend- 
ant 's  trains  in  that  capacity.  At  the  time  he  entered 
upon  his  course  of  learning  he  signed  a  written  state- 
ment in  which  he  agreed  that  he  should  receive  no 
compensation  and  that  he  would  not  be  held  to  be  a 
servant  but  a  licensee  upon  the  property  of  the  de- 
fendant. He  was  injured  while  attempting  to  de- 
scend from  a  box  car  to  throw  a  switch  by  striking 
a  coal  chute  close  to  the  track.  In  an  action  under 
the  federal  act  the  court  held  that  the  plaintiff  was 


NEGLIGENCE   UNDER   THE   ACT  29 

an  employe  of  the  defendant  as  a  matter  of  law,  as 
the  testimony  showed  that  he  was  expected  to  per- 
form and  did  perform  such  tasks  as  were  assigned 
him  by  members  of  the  crew  in  charge  of  the  trains. 
He  helped  load  and  unload  freight  at  way  stations, 
threw  switches  and  did  whatever  he  was  ordered  to 
do  in  the  operation  of  a  train. 

In  Hobbs  v.  Great  N.  Ry.  Co.,  cited  in  the  note, 
the  decedent  was  killed  while  riding  upon  the  pilot 
of  an  engine.  He  was  a  hostler's  helper  and  his  last 
work  was  placing  sand  in  the  engine.  In  doing  this 
work  the  deceased  was  not  required  to  ride  on  a 
pilot.  No  one  knew  why  he  stepped  upon  the  pilot. 
The  engine  in  moving  collided  with  the  footboard 
of  another  switch  engine,  which  was  not  visible  be- 
cause of  escaping  steam,  and  this  caused  decedent's 
death.  There  was  a  rule  of  the  railroad  company 
forbidding  employes  to  ride  on  engine  pilots  and  the 
decedent  in  addition  had  been  specifically  told  not  to 
ride  on  pilots.  The  court  in  denying  that  the  rail- 
road company  was  liable,  said:  "The  rule  of  lia- 
bility against  a  railway  company  engaged  in  inter- 
state commerce  is  predicated  upon  the  duty  of  the 
company  to  furnish  its  servant  with  a  reasonably 
safe  place  in  which  to  perform  the  work  it  requires 
of  him  or  while  he  has  to  be  in  those  places  which 
are  incident  to  his  work,  and  this  duty  is  incident  to 
all  places  where  the  employe  must  necessarily  be  in 
connection  with  his  employment.  But  that  duty  is 
not  incident  to  his  place  where  a  servant  is  not  re- 
quired to  be  nor  expected  to  be  in  the  performance 
of  his  worl^     Nor  does  it  cover  the  servant  when 


30  IN JUEIES  TO  INTERSTATE  EMPLOYES  ON  EAILBOADS 

he  is  not  witliin  the  scope  of  his  employment  or  doing 
some  act  which  is  not  incidental  to  his  employment. 
This  rule  is  sustained  by  all  authorities  and  the  fed- 
eral act  in  no  wise  attempts  to  change  it.  Unless  the 
evidence  in  this  case  shows  that  the  deceased  was 
upon  the  pilot  of  his  engine  in  discharge  of  some 
duty  required  by  the  railroad  company,  then  the 
railroad  company  owed  him  no  duty  except  to  avoid 
injuring  him  after  it  discovered  his  perilous  posi- 
tion. Such  is  so  clearly  the  law  that  it  will  not  be 
doubted  and  no  authorities  need  be  cited  to  sustain 
it.  There  is  no  evidence  in  this  record  that  the 
deceased  was  required  to  do  any  act  which  would 
place  him  upon  the  pilot  of  the  engine.  All  the  evi- 
dence on  this  subject  is  to  the  contrary.  So  far  as 
we  can  find,  whatever  it  was  that  caused  him  to  step 
upon  the  pilot,  it  was  his  own  purpose,  not  in  any 
way  connected  with  his  work  as  a  hostler's  helper. 
If  it  was  his  purpose  to  engage  in  any  task,  so  far  as 
this  record  gives,  in  so  doing  he  was  a  volunteer 
without  appellant's  direction  or  knowledge  and  so 
far  as  the  law  is  concerned  the  result  is  the  same. 
li  we  could  find  anything  in  the  evidence  which 
would  justify  a  different  conclusion,  however  meager 
it  might  be,  we  would  submit  to  the  verdict  as  deter- 
minative of  the  fact.  But  we  cannot  find  it  and  such 
being  the  case,  however  unfortunate  or  distressing 
the  circumstances  may  be,  it  is  our  duty  to  so  hold." 
§15.  Meaning  of  the  Phrase  "In  Whole  or  in 
Part." — Liability  is  shown  under  the  federal  act 
when  the  plaintiff  proves  that  the  injury  or  deatli 
was  due  either  "in  whole  or  in  part"  to  negligence 


NEGLIGENCE    UNDER  THE   ACT  31 

of  the  defendant.  This  phrase  is  an  adoption  of  the 
common  law  doctrine  of  concurrent  causes.  Al- 
though causes  for  which  the  carrier  is  not  liable, 
contributed  directly  to  produce  the  injury,  yet  if  a 
cause  for  which  the  carrier  is  liable,  that  is,  a  negli- 
gent act  of  any  other  employe  or  a  defect  or  insuf- 
ficiency due  to  negligence  in  equipment  or  works, 
contributes  also  as  cause,  without  which  the  injury 
would  not  have  occurred,  the  carrier  is  still  liable. 
The  quoted  phrase  means  nothing  more  or  less  than 
that  the  negligent  act  of  the  carrier  must  be  the 
proximate  cause  of  the  injury  and  in  cases  of  doubt, 
to  ascertain  when  a  negligent  act  is  the  proximate 
cause  under  the  federal  law,  decisions  of  courts  pass- 
ing upon  such  questions  under  the  conunon  law,  are 
applicable.^ 

§  16.  Recovery  Cannot  Be  Defeated  by  Calling 
Plaintiff's  Act  Proximate  Cause  When  Defendant's 
Negligence  Is  Part  of  Causation. — There  can  be  no 
recovery  under  the  federal  act  when  the  injury  is 
due  solely  to  the  negligence  of  the  injured  servant. 
A\Tien  the-  defendant's  act  is  no  part  of  the  causation, 
then  it  is  not  liable;  but  if  the  injury  resulted  in 
whole  or  in  part  from  the  company's  negligence,  the 
statute  cannot  be  nullified  and  the  right  of  recovery 

8.  Union  P.  R.  Co.  v.  Fuller,  122  C.  C.  A.  359,  204  Fed.  45; 
Bowers  v.  Southern  Ry.  Co.,  10  Ga.  App.  367,  1  N.  C.  C.  A.  841n; 
Louisville  &  N.  R.  Co.  v.  Wene,  202  Fed.  887;  Shugart  v.  Atlantic, 
etc.,  Ry.  Co.,  66  C.  C.  A.  379,  133  Fed.  505;  Choctaw,  etc.,  Ry.  Co.  v. 
Hoolaway,  191  U.  S.  334,  48  L.  Ed.  207;  Milwaukee,  etc.,  R.  R.  Co. 
V.  Kellogg,  94  U.  S.  469,  24  L.  Ed.  256;  Travelers'  Ins,  Co.  v. 
Melick,  12  C.  A.  A.  544,  65  Fed.  178,  27  L.  R.  A.  629;  St.  Louis, 
I.  M.  &  S.  Ry.  Co.  V.  Needham,  16  C.  A.  A.  457,  69  Fed.  823;  Mis- 
souri, etc.,  Ry.  Co.  v.  Byrne,  40  C.  A.  A.  402,  100  Fed.  359. 


32  INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

defeated  by  calling  the  plaintiff's  act  the  proximate 
cause  of  the  injury.^ 

§  17.  Casualties  Due  ta  Sole  Neglig^ence  of  Em- 
ploye, No  Recovery  Under  Federal  Act. — If  the  sole 
cause  of  an  employe's  injury  or  death  is  his  own  act 
whether  negligent  or  not,  there  can  be  no  recovery 
under  the  federal  act.^*'  For  instance,  a  recovery 
was  denied  upon  this  principle  under  the  following 
facts:  Deceased,  a  flagman,  was  sent  by  a  bridge 
foreman  a  certain  distance  on  the  track  from  a  bridge 
on  which  repairs  were  being  made,  to  protect  the 
bridge  crew  by  "flagging"  all  passing  trains. 
While  on  duty  he  was  struck  and  killed  by  a  train 
approaching  from  the  direction  of  the  bridge.  In 
an  action  for  damages  under  the  federal  act,  it  was 
claimed  that  his  death  was  due  in  part  to  the  neg- 
ligence of  the  employes  in  charge  of  the  train  in 
failing  to  keep  a  lookout  and  to  give  a  reasonable 
warning  of  the  approach  of  the  train;  but  the  court 
held  that  the  defendant  did  not  owe  the  decedent 
the  duty  of  keeping  a  lookout  for  him  and  as  there 
was  no  evidence  that  the  train  operatives  actually 
saw  him  in  a  position  of  peril  in  time  to  have,  by 
exercising  ordinary  care,  prevented  his  death,  a  ver- 
dict of  the  jury  for  defendant  was  approved.  In  the 
course  of  the  opinion,  the  court  said :    ' '  When  a  flag- 

9.  Pankey  v.  Atchison,  T.  &  S.  F.  R.  Co.,  180  Mo.  App.  185;  Grand 
Trunk  W.  Ey.  Co.  v.  Lindsay,  120  C.  C.  A".  166,  201  Fed.  836;  s.  c, 
233  U.  S.  42,  58  L.  Ed.  838,  6  N.  C.  C.  A.  90n,  91n,  Ann.  Cas.  1914  C 
168n;  Louisville  &  N.  E.  Co.  v.  Wene,  202  Fed.  892;  Spokane  &  I.  E. 
E.  Co.  V.  Campbell,  217  Fed.   (C.  C.  A.)  518. 

10.  Grand  T.  W.  Ey.  Co.  v.  Lindsay,  233  U.  &'.  42,  58  L.  Ed.  838, 
6  N.  C.  C.  A.  90n,  91n;  Ann.  Cas.  1914  C  168n. 


NEGLIGENCE   UNDER   THE   ACT  33 

man  is  sent  out  to  watch  for  trains  and  warn  them  of 
danger,  the  company  and  its  trainmen  have  a  right 
to  presume  that  he  will  not  only  watch  for  trains 
but  also  for  his  own  safety  and  his  failure  to  do  this 
is  his  own  negligence"  and  "if  one's  death  is  caused 
solely  by  his  own  negligence,  he  cannot  recover 
under  either  the  state  law  or  the  Federal  Employers ' 
Liability  Act."" 

In  another  case  under  the  federal  act  the  Kansas 
City  Court  of  Appeals  held  that  there  was  no  liabil- 
ity for  the  death  of  a  brakeman  who,  having  signaled 
the  engineer  to  slow  down  the  speed  of  a  backing 
train  on  a  curve  at  night  voluntarily  placed  himself 
in  a  place  of  danger  between  the  moving  cars  and  a 
freight  loading  platform  where  he  could  not  signal 
the  engineer  and  could  not  have  been  seen  by  him 
because  of  the  curve,  and  was  crushed  to  death  be- 
tween the  platform  and  a  side  of  a  moving  car  as  he 
was  attempting  to  vault  onto  the  platform.  There 
was  a  safe  place  for  the  decedent  to  stand  on  the 
opposite  side  of  the  track  where  there  was  no  ob- 
struction. Discussing  the  legal  effect  of  these  facts. 
Judge  Trimble,  for  the  court,  said:  "Under  the 
(Federal)  Employers'  Liability  Act,  if  there  was 
negligence  on  the  part  of  the  defendant,  contributory 
negligence  of  the  deceased  does  not  bar  a  recovery 
but  only  diminishes  the  damages  in  proportion  to 
the  amount  of  negligence  attributable  to  such  em- 
ploye. Where,  however,  there  is  no  negligence  on 
the  part  of  the  master,  but  the  injury  is  solely  the 

11.  Ellis  V.  LouisvUle,  H.  &  St.  L.  E.  Co.,  155  Ky.  745,  6.  N.  C. 
C.  A.  103n,  54311. 

Roberts  Liabilities — 3 


34  INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

result  of  the  employe's  negligence,  tliere  can  be  no 
recovery.  That  such  is  the  case  here  we  think  there 
can  be  no  donbt.  Pankey  gave  the  slow  signal  and 
theil  went  from  a  place  of  safety  and,  without  notice 
or  intimation  to  anyone,  placed  himself  in  an  ex- 
ceedingly dangerous  situation.  He  was  not  required 
to  do  this  in  the  performance  of  his  work.  And, 
when  the  danger  of  his  situation  evoked  a  warning 
from  his  conductor,  he  voluntarily  chose  a  danger- 
ous instead  of  an  easier  and  a  surely  safe  way  out. 
This  last  was  in  itself  negligence."  ^- 

§  18.  In  Actions  Under  Federal  Act  Prosecuted  in 
State  Courts,  Decisions  of  National  Courts  Control 
in  Determining  Negligence — Contrary  Rulings. — 
Prior  to  the  enactment  of  the  Federal  Employers' 
Liability  Act,  state  courts  as  well  as  national  courts 
had  uniformly  held  that  in  construing  and  inter- 
preting all  federal  statutes,  the  state  courts  were 
controlled  by  the  decisions  of  the  national  courts.  ^^ 
Adopting  the  same  principle,  in  all  actions  prose- 
cuted in  the  courts  of  one  state  for  injuries  occurring 
in  another  state,  the  construction  which  the  courts 
of  the  latter  state  placed  upon  common  law  princi- 
ples of  negligence  has  uniformly  been  followed  by 
the  courts  where  the  actions  were  prosecuted  al- 
though different  from  their  own  interpretation  and 

12.  Pankey  v.  Atchison,  T.  &  S.  F.  R.  Co.,  180  Mo.  App.  185. 

13.  Haseltine  v.  Central  Nat.  Bank,  155  Mo.  66;  Gilmore  v.  Sapp, 
100  111.  297;  First  Nat.  Bank  v.  Turner,  154  Ind.  497;  Board  of 
Trustees  v.  Cuppett,  52  Ohio  St.  567;  Hall  v.  Hall,  41  Wash.  186; 
Bank  of  Garrison  v.  Malley,  103  Tex.  562;  Beckman  Lumber  Co.  v. 
Acme  Hai-vester  Co.,  215  Mo.  221;  Elwell  v.  Hicks,  180  lU.  App.  554; 
Pecos  &  N.  T.  Ry.  Co.  v.  Cox,  105  Tex.  40. 


NEGLIGENCE   UNDER   THE   ACT  35 

construction  of  the  common  law.^^  But  in  deter- 
mining when  a  carrier  by  railroad  is  guilty  of  negli- 
gence under  the  Federal  Employers'  Liability  Act, 
at  least  one  court  has  carved  out  an  exception  to  the 
general  rule  that  the  decisions  of  the  national  courts 
do  not  control  in  construing  a  national  statute.^^ 

In  Louisville  &  N.  R.  Co.  v.  Johnson,  cited  in  the 
notes,  the  court  held  that  in  determining  negligence 
under  the  national  statute,  if  the  evidence  is  suf- 
ficient to  support  a  verdict  under  the  state  law,  it 
is  sufficient  under  the  federal  statute.  The  language 
of  the  court  in  the  opinion  on  this  point  is  as  follows : 
'*In  administering  the  Federal  Employers'  Liability 
iVct  in  our  courts,  we  think  the  practice  and  pro- 
cedure followed  in  the  trial  of  common  law  actions 
generally  should  be  observed  in  the  trial  of  cases 
under  this  act.  C.  &  0.  R.  Co.  v.  Kelley,  160  Ky.  296, 
169  S.  W.  746.    In  other  words,  excepting  so  far  as 

14.  Chandler  v.  St,  Louis  &  S.  F.  E.  Co.,  127  Mo.  App.  34;  Eoot 
V.  Kansas  City  S.  Ey.  Co.,  195  Mo.  348,  6  L.  E.  A.  (N.  S.)  212n; 
Alexander  v.  Pennsylvania  E.  Co.,  48  Ohio  St.  623;  State  to  use  of 
Allen  V.  Eailway,  45  Md.  41 ;  Pullman  Co.  v.  Lawrence,  74  Miss.  782 ; 
Bewster  v.  Chicago  N.  W.  Ey.  Co.,  114  Iowa.  144,  89  Am.  &'t.  Eep. 
348;  Koecher  v.  Minneapolis,  St.  P.  &  S.  S.  M.  Ey.  Co.,  122  Minn. 
458;  White  v.  Seaboard  A.  L.  Ey.  Co.,  —  Ga.  — ,  80  S.  E.  667; 
Western  U.  T.  Co.  v.  White,  —  Tex.  Civ.  App.  — ,  5  N.  C.  C.  A.  377n, 
162  S.  W.  905. 

15.  Gray  v.  Southern  Ey.  Co.,  —  N.  C.  — ,  83  S.  E.  489  (Brown 
and  Walker,  J.J.,  dissenting)  ;  Louisville  &  N.  E.  Co.  v.  Johnson, 
—  Ky.  — ,  171  S.  W.  847;  Helm  v.  Cincinnati,  N.  O.  &  T.  P.  Ey.  Co., 
156  Ky.  240,  6  N.  C.  C.  A.  83n,  84n;  contra,  Hardwiek  v.  Wabash  E. 
Co.,  181  Mo.  App.  156;  McAdow  v.  Kansas  City  W.  Ey.  Co.,  —  Mo. 
App.  — ,  6  N.  C.  C.  A.  76n,  206n,  233n,  164  S.  W.  188 ;  Nashville  C.  & 
St.  L.  Ey.  Co.  V.  Henry,  158  Ky.  88,  4  N.  C.  C.  A.  495n,  6  N.  C.  C.  A. 
99n,  106n;  Dooley  v.  Seaboard  A.  L.  Ey.  Co.,  163  N.  C.  454,  6  N.  C. 
C.  A.  440n,  442n,  452n;  Peery  v.  Illinois  C.  E.  Co.,  123  Minn.  264,  6 
N.  C.  C.  A.  184u ;  s.  c,  —  Minn.  — ,  150  N.  W.  382. 


36  INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

tlie  act  itself  modifies  or  changes  rules  of  practice 
and  procedure  or  substantive  law,  cases  arising 
under  the  act  should  be  heard  and  determined  in 
the  state  courts  in  the  same  manner  as  would  like 
cases  arising  under  the  law  prevailing  in  this  state. 
If  the  evidence  in  a  case  heard  and  detennined  under 
this  act  would  be  sufficient  to  take  the  case  to  the 
jury  and  support  the  verdict  if  the  suit  had  been 
brought  under  the  state  law,  it  would  be  sufficient 
to  take  the  case  to  the  jury  and  support  the  verdict 
if  it  was  brought  under  the  Federal  Act."  It  is 
true  that  the  law  of  procedure  of  the  state  where  the 
action  is  pending  governs  in  all  cases  under  the 
Federal  Act  ^^  but  as  to  ' '  substantive  law ' '  referred 
to  in  this  opinion,  the  decision  is  in  conflict  with 
prior  rulings  of  the  national  Supreme  Court.^"  In 
the  McWhirter  case,  cited  in  the  notes,  it  was  spe- 
cifically held  that  the  question  of  whether  a  demurrer 
to  the  evidence  should  have  been  sustained  or  over- 
i-uled,  was  a  federal  question  to  be  determined  in 
conformity  with  the  rulings  of  the  United  States 
Supreme  Court. 

In  the  Horton  case,  also  cited  in  the  notes,  the 
trial  court,  on  the  question  of  negligence,  in  instruct- 
ing the  jury,  formulated  the  charge  in  conformity 
with  the  law  of  the  state.    This  was  declared  errone- 

16.  Section  9,  supra. 

17.  Seaboard  A.  L.  Co.  v.  Horton,  233  U.  S.  492,  58  L.  Ed.  1062, 
6  N.  C.  C.  A.  75n,  95n,  101,  102n;  St.  Louis,  I.  M.  &  S.  Ey.  Co.  v. 
McWhirter,  229  U.  S.  265,  57  L.  Ed.  1179,  reversing  same  case 
reported  in  145  Ky.  427.  The  Kentucky  Court  of  Appeals  reaffirmed 
the  ruling  made  in  LouisviUe  &  N.  K.  Co.  v.  Johnson,  supra,  in  the 
later  case  of  Louisville  &  N.  E.  Co.  v.  Winkler,  —  Ky.  — ,  173  S.  W^. 
151,  decided  February  18,  1915. 


NEGLIGENCE   UNDER   THE   ACT  37 

ous,  the  court  saying:  ''In  these  instructions  the 
trial  judge  evidently  adopted  the  same  measure  of 
responsibility  respecting  the  character  and  safe  con- 
dition of  the  place  of  work  and  the  appliance  for 
the  doing  of  the  work  that  is  prescribed  by  the  local 
statute.  But  it  is  settled  that  since  Congress,  by 
the  Act  of  1908,  took  possession  of  the  field  of  the 
employers'  liability  to  employes  in  interstate  trans- 
portation by  rail,  all  state  laws  upon  the  subject  are 
superseded."  In  Helm  v.  Cincinnati,  N.  0.  &  T.  P. 
Ry.  Co.,  cited  in  the  notes,  the  court  held  that  since 
the  Federal  A;ct  did  not  undertake  to  define  negli- 
gence and  in  no  way  limited  the  application  of  the 
common  law  rule  upon  the  subject  and  since  there 
was  no  federal  common  law,  it  was  the  common  law 
of  the  state  where  the  accident  occurred,  to  which 
the  court  must  look  in  determining  whether  the  acts 
complained  of  amount  to  negligence.  If  the  doc- 
trine announced  in  this  case  is  followed,  then  it  will 
often  result  that  an  act  will  be  declared  negligent  in 
one  state  and  not  negligent  in  another  state  under 
the  same  law,  that  is,  the  federal  act.  Such  discrimi- 
nation would  defeat  one  of  the  main  objects  of  the 
national  statute — one  uniform  rule  of  liability  in  all 
the  states  where  a  carrier  by  railroad  is  engaged  in 
interstate  commerce  to  its  servants  while  employed 
in  such  commerce.  It  is  true  that  prior  to  the  enact- 
ment of  the  Federal  Employers'  Liability  Act,  there 
was  no  federal  common  law;  but  it  has  been  held  by 
the  United  States  Supreme  Court  in  the  Horton 
case,  cited,  supra,  that  Congress  in  passing  the  Fed- 
eral Employers '  Liability  Act,  adopted  the  rules  and 


38  INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

principles  of  the  common  law  in  determining  when 
a  carrier  was  negligent,  nnder  the  first  section  of  the 
act,  with  the  exception  that  the  common  law  fellow- 
servant  doctrine  was  abolished.  It  would  seem, 
therefore,  that  the  decisions  of  the  national  courts 
in  construing  the  national  statute  should  control  in 
determining  negligence  under  the  act  and  in  con- 
struing and  interpreting  the  common  law  principles 
concerning  negligence  so  that  there  may  be  one  rule 
of  liability  under  this  law,  when  applicable,  in  all 
state  courts.  Certainly  there  must  be  some  con- 
trolling authority  in  determining  negligence  under 
this  act  and  if  these  questions  are  left  to  be  deter- 
mined according  to  the  admittedly  conflicting  de- 
cisions of  the  courts  of  the  several  states,  whose 
rulings  are  paramount  and  exclusive  in  their  own 
jurisdiction,  the  question  as  to  when  a  carrier  is 
negligent  under  the  federal  statute  would  become  a 
matter  of  the  geography  of  the  states  and  not  of  a 
one  supreme  law  applying  uniformly  within  its  ex- 
clusive domain.  Recognizing  the  inapplicability  of 
state  laws  in  determining  negligence  under  the  fed- 
eral statute,  the  Kentucky  Court  of  Appeals  in  an- 
other case  and  also  the  Georgia  Court  of  Appeals 
held  that  a  law,  providing  that  upon  proof  of  an 
accident  the  presumption  of  negligence  arises,  did 
not  control  in  an  action  for  damages  under  the  fed- 
eral statute.  ^^ 

The  question  under  consideration  is  a  vital  one 
under  the  act  and  it  has  not  apparently  been  directly 

18.  Charleston  &  W.  C.  R.  Co.  v.  Brown,  —  Ga.  — ,  79  S.  E.  932; 
South  Covington  &  C.  St.  Ey.  Co.  v.  Finan  's  Adm  'x,  153  Ky.  340. 


NEGLIGENCE  UNDER  THE  ACT  39 

decided  by  the  Supreme  Court  of  the  United  States. 
However,  in  the  case  of  Gray  v.  Southern  Ey.  Co., 
cited  in  the  notes,  the  question  is  discussed  at  length 
in  the  dissenting  opinion  in  the  light  of  the  federal 
decisions.  The  court  in  the  majority  opinion  did 
not  apparently  deny  that  the  federal  decisions  con- 
trolled but  held  that  under  the  facts  of  that  case 
the  decisions  of  the  federal  and  state  courts  were  in 
harmony  and  did  not  conflict.  On  this  question, 
Judge  Brown,  in  the  minority  opinion,  dissented, 
but  also  analyzed  and  discussed  the  question  of  the 
controlling  effect  of  the  federal  decisions  in  deter- 
mining negligence  under  the  federal  act  as  follows: 
'*In  administering  the  Federal  Liability  Act,  the 
state  courts  are  bound  by  the  construction  and  de- 
cisions of  the  federal  courts.  Since  Congress  has 
taken  possession  of  the  field  of  employers'  liability 
to  employes  in  interstate  transportation  by  rail,  all 
state  laws  upon  the  subject  are  superseded.  Sea- 
board Air  Line  Ry.  Co.  v.  Horton,  233  U.  S.  492,  34 
Sup.  Ct.  635,  58  L.  Ed.  1062  (6  N.  C.  C.  A.  75n,  95n, 
lOln,  102n) ;  Mondou  v.  Ry.  Co.,  223  U.  S.  1,  32  Sup. 
Ct.  169,  56  L.  Ed.  327  (1  N.  C.  C.  A.  875),  38  L.  R.  A. 
(N.  S.)  44.  Not  only  have  state  statutes  been  made 
inapplicable,  but  the  common  law  as  well,  where  a 
construction  has  been  placed  upon  it  by  the  state 
courts  differing  from  that  of  the  federal  courts. 
South  Covington  R.  Co.  v.  Finan,  153  Ky.  340,  155 
S.  W.  742;  W.  U.  Tel.  Co.  v.  Milling  Co.,  218  U.  S. 
406,  31  Sup.  Ct.  59,  54  L.  Ed.  1088,  36  L.  R.  A.  (N.  S.) 
220,  21  Ann.  Cas.  815.  This  subject  is  elaborately 
and  ably  discussed  by  Mr.  Justice  Myers  of  the  Su- 


40  INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

preme  Court  of  Indiana  and  in  the  recent  casse  of 
So.  Ry.  V.  Howerton  (—  Ind.  —  6  N.  C.  C.  A.  75n, 
82n),  105  N.  E.  1026,  where  all  the  authorities  are 
collected.  Under  the  law,  as  applied  by  the  federal 
courts,  the  defendant  is  liable  if  it  could  have 
avoided  the  injury  by  the  exercise  of  ordinary  care, 
only  after  actually  discovering  the  perilous  situa- 
tion. Little  Eock  R.  &  E.  Co.  v.  Billings,  173  Fed. 
903,  98  C.  C.  A.  467  (5  N.  C.  C.  A.  152,  153n),  31  L. 
R.  A.  (N.  S.)  1031,  19  Ann.  Cas.  1173;  note  55  L.  R. 
A.,  page  424;  Coasting  Co.  v.  Tolson,  139  U.  S.  551, 
11  Sup.  Ct.  653,  35  L.  Ed.  270;  Newport  News  &  M. 
V.  Co.  V.  Howe,  52  Fed.  362,  3  C.  C.  A  121;  Dunworth 
V.  Grand  Trunk  Western  Ry.  Co.,  127  Fed.  307,  62 
C.  C.  A.  225;  N.  Y.,  N.  H.  &  H.  R.  v.  Kelly,  93  Fed. 
745,  35  C.  C.  A.  571;  Smith  v.  R.  R.  Co.,  210  Fed.  414, 
127  C.  C.  A.  146.  In  Newport  News  &  M.  V.  Co.  v. 
Howe,  supra,  the  plaintiff  was  a  brakeman  on  a 
freight  train;  the  train  parted  and  the  engine,  with 
the  forward  portion  of  the  train,  ran  some  distance 
ahead  before  the  accident  was  discovered.  The  con- 
ductor on  the  rear  portion  of  the  train  sent  Howe 
ahead  with  a  lantern  to  signal  the  engine,  and  to  give 
the  engineer  information  as  to  the  whereabouts  of 
the  rear  cars.  Howe  went  forward  several  hundred 
yards,  sat  down  on  the  end  of  a  tie,  put  his  light 
down  near  him,  and  went  to  sleep  with  his  arm 
thrown  over  the  rail.  The  engineer,  after  running 
about  five  miles,  discovered  the  parting,  and  started 
back  with  his  engine  and  tender  to  take  up  the  rest 
of  the  train.  The  fireman  testified  that  when  within 
a  distance  of  between  100  and  200  feet  from  the 


NEGLIGENCE   UNDER   THE   ACT  41 

point  where  Howe  lay,  he  saw  the  reflection  of  the 
light  from  Howe's  lamp.    He  called  to  the  engineer: 
I 'Look  out,  there  they  are' — meaning  the  rear  por- 
;!  tion  of  the  train.    Hte  looked  again  and  saw  on  the 
"other  side  of  the  track  an  object  which  he  took  to 
;^be  the  brakeman  waiting  to  step  on  the  engine.    He 
^crossed  to  the  engineer's  side,  and  then  saw  the 
prostrate  man  only  10  or  15  feet  from  the  approach- 
ing engine.    He  signalled  the  engineer,  who  applied 
the  brakes,  but  was  unable  to  stop  before  the  wheels 
had  passed  over  Howe 's  arm  and  cut  it  off.    A  wit- 
ness, McGuire,  testified  that  the  engineer  did  not 
-look  out  of  the  cab  window,  and  that  if  he  looked 
out,   he   would   have   seen  Howe,   and  could  have 
stopped  the  engine  in  time  to  avoid  the  accident, 
/rhe  rules  of  the  company  required  the  engineer, 
limder  these  conditions,  to  signal  his  return  by  blow- 
ing his  whistle  at  certain  intervals,  and  not  to  run 
>at  a  higher  speed  than  four  miles  per  hour.    Both  of 
:  these  rules  were  being  violated.    Judge  Taf t,  writing 
'the  opinion,  says:     'While     *     *     *     an  engineer 
'who  fails  to  keep  a  sharp  lookout  upon  the  track  is 
wanting  in  due  care  to  passengers  and  lawful  travel- 
ers, because  of  the  probability  of  danger  to  each 
from  such  failure,  such  conduct  is  not  a  want  of  due 
care  with  respect  to  a  man  asleep  upon  the  track, 
because  of  the  presumption,  upon  which  the  engineer 
has  a  right  to  rely,  that  no  one  would  be  so  grossly 
negligent  in  courting  death.     *     *     *     As  applied 
to  a  case  like  the  present,  therefore,  we  believe  the 
rule  relied  on  by  counsel  for  plaintiff  below  should 
be  construed  to  mean  that  the  negligence  of  the 


42  INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

plaintiff  will  be  no  defense  if  the  defendant,  after 
he  knew  the  peril  of  the  plaintiff,  did  not  use  due 
care  to  avoid  it.'  This  case  cites  Coasting  Co.  v. 
Tolson,  139  U.  S.  551,  11  Sup.  Ct.  653,  35  L.  Ed.  270, 
and  referring  to  that  case,  Judge  Taft  says:  "This 
would  seem  to  show  that,  in  the  opinion  of  the  Su- 
preme Court,  knowledge  of  plaintiff's  peril  was  re- 
quired to  make  the  rule  applicable. '  In  Little  Rock, 
E.  &  E.  Co.  V.  Billings,  supra,  the  court,  composed  of 
Justices  Sanborn,  Pollock  and  Van  Devanter,  the 
latter  of  whom  is  now  a  justice  of  the  Supreme  Court 
of  the  United  States,  said:  'As  deduced  from  the 
foregoing  authorities,  and  many  others  that  might 
be  cited,  this  qualification  may  be  stated  as  follows : 
A,  who  by  his  own  negligent  act  or  conduct  has 
placed  himself  in  a  position  of  imminent  peril,  of 
which  he  is  either  unconscious,  or  from  which  he  is 
unable  to  extricate  himself  if  conscious,  may  not  be 
carelessly,  recklessly,  or  wantonly  injured  by  B, 
whom  after  he  has  discovered  and  knows  the  helpless 
and  perilous  condition  of  A,  has  it  within  his  power 
to  avoid  doing  him  an  injury  by  the  exercise  of  rea- 
sonable care,  and  diligence  in  the  use  of  such  instru- 
mentalities as  he  can  command;  and  the  failure  to 
exercise  such  reasonable  care  and  diligence  on  the 
part  of  B,  under  such  circumstances,  will  constitute 
actionable  negligence,  rendering  him  liable  in  dam- 
ages to  A,  notwithstanding  the  prior  negligent  act 
of  A,  in  placing  himself  in  position  to  receive  the 
injury. '  To  my  mind,  it  is  quite  plain  that,  in  charg- 
ing the  jury  upon  the  measure  of  the  engineer's  duty. 


NEGLIGENCE   UNDER   THE   ACT  43 

the  trial  judge  should  have  followed  the  federal  and 
not  the  state  rule." 

§  19.  Negligence  of  Human  Agencies  Not  Limited 
to  Fellow  Servants  as  Construed  Under  Common 
Law. — Under  the  first  section  of  the  federal  act  a 
carrier  by  railroad  is  liable  for  the  negligence  of  any 
of  its  officers  or  employes  and  the  statute  does  not 
confine  the  negligent  acts  of  employes  for  which  it 
is  liable,  to  such  servants  as  under  the  common  law 
were  construed  to  be  fellow  servants  of  the  injured 
employe.  ^^ 

In  the  case  of  DeAtley  v.  Chesapeake  &  0.  By.  Co., 
cited  in  the  notes,  a  brakeman  on  a  train  carrying 
interstate  shipments  was  ordered  to  leave  the  train 
at  a  certain  signal  tower  to  get  the  train  orders  for 
the  movement  of  the  train  and  while  returning  with 
the  orders  he  attempted  in  the  usual  and  customary 
way  to  get  on  the  train  while  it  was  moving,  but 
missed  his  footing,  fell  and  was  injured.  In  his 
petition  under  the  federal  act  he  alleged,  among 
other  things,  that  the  defendant  was  negligent  in 
failing  to  adopt  rules  requiring  all  trains  to  be 
stopped  so  that  brakemen  would  not  be  compelled  to 
get  on  them  while  in  motion.  It  was  contended  by 
the  railroad  company  that  this  failure  to  adopt  such 
a  rule  was  not  such  a  negligent  act  as  was  covered 
by  the  Employers'  Liability  Act  for  the  reason  that 
it  was  not  the  negligent  act  of  a  fellow  servant;  but 
the  court  held  that  the  words  in  the  statute  "of- 
ficers, agents  and  employes"  were  not  limited  to 

19.  DeAtley  v.  Chesapeake  &  O.  Ry.  Co.,  201  Fed.  591. 


44  INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

fellow  servants  as  construed  under  the  common  law 
doctrines,  but  included  any  and  all  agents  or  officers 
of  the  company  whose  duty  it  was  to  adopt  and 
promulgate  rules  governing  the  operation  of  trains. 
The  court  said:  "It  (defendant)  can  only  act 
through  officers,  agents  and  employes  and  the  fail- 
ure to  look  after  such  condition  properly  is  neces- 
sarily negligence  on  the  part  of  officers,  agents  and 
employes  to  whom  it  has  intrusted  the  duty  of  look- 
ing thereafter.  The  two  classes  seem,  therefore,  to 
overlap,  but  I  do  not  think  that  one  is  justified  in 
limiting  the  language  of  the  first  class  to  prevent 
overlapping,  which  would  be  done  by  limiting  the 
first  class  to  the  negligence  of  servants  for  which 
the  common  carrier  is  not  liable  at  common  law, 
leaving  the  second  class  to  cover  the  negligence  of 
servants  for  whom  it  is  in  such  cases  as  it  covers. 
*  *  *  It  seems  to  me  that  it  was  the  intent  and 
purpose  of  the  act  to  cover  every  negligence  for 
which  a  common  carrier  engaged  in  interstate  com- 
merce might  be  liable  to  its  employes  in  such  com- 
merce. ' ' 

§  20.  Statute  Covers  Negligent  Act  of  Intrastate 
Employes  and  Defects  in  Instrumentalities  Used 
Solely  in  Intrastate  Commerce. — It  is  not  essential, 
to  permit  a  recoveiy  under  the  national  act,  that  the 
employe  whose  negligence  caused  the  injury  be  also 
employed  in  interstate  commerce  or  that  the  instru- 
mentality, the  defect  in  which  caused  the  injury,  be 
used  at  the  time  in  interstate  commerce.  Instances 
where  the  causal  negligence  is  that  of  a  coemploye 
engaged  at  the  time  solely  in  intrastate  commerce  or 


NEGLIGENCE   UNDER   THE   ACT  45 

where  the  instrumentality  causing  the  injury  was 
used  at  the  time  exclusively  in  intrastate  commerce, 
are  embraced  within  the  terms  of  the  act,  if  the  other 
conditions  are  present,  that  is,  if  the  carrier  was 
engaged  in  interstate  commerce  and  if  the  injured 
employe  at  the  time  was  employed  in  interstate  com- 
merce. 

The  statute  gives  a  right  of  recovery  under  such 
conditions  for  injury  or  death  resulting  from  the 
negligence  of  any  of  the  employes. ^*^  In  the  Peder- 
son  case,  cited  in  the  notes,  the  court  said:  ''But  it 
is  not  essential  where  the  causal  negligence  is  that 
of  a  coemploj^e  that  he  also  be  employed  in  such 
commerce,  for,  if  the  other  conditions  be  present,  the 
statute  gives  a  right  of  recovery  for  injury  or  death 
resulting  from  the  negligence  'of  any  of  the  em- 
ployes of  such  carrier'  and  this  includes  an  employe 
engaged  in  intrastate  commerce. ' ' 

An  appellate  court  in  New  Jersey  rendered  an  er- 
roneous decision  on  the  question  of  applicability  of 
the  federal  act  which  was  due  in  part  to  a  failure  to 
recognize  this  principle.^^  In  that  case  the  plaintiff 
was  injured  while  placing  a  cover  over  the  mechan- 
ism of  a  switch  which  he  had  just  oiled.  The  switch 
connected  with  tracks  used  indiscriminately  in  mov- 
ing both  kinds  of  commerce.  While  so  engaged  the 
plaintiff  was  struck  by  a  car  used  at  the  time  solely 

20.  Mondou  v.  New  York,  N.  H.  &  H.  R.  Co.,  Second  Employers' 
Liability  Cases,  223  U.  S.  1,  56,  56  L.  Ed.  327,  1  N.  C.  C.  A.  875,  38 
L.  R.  A.  (N.  S.)  44;  Pederson  v.  Delaware,  L.  &  W.  R.  Co.,  229  U.  S. 
146,  57  L.  Ed.  1125,  6  N.  C.  C,  A.  198n,  924n,  Ann.  Cas.  1914  C  153n; 
Colasurdo  v.  Central  R.  Co.  of  New  Jersey,  180  Fed.  832. 

21.  Granger  v.  Pennsylvania  R.  Co.,  —  N.  J.  — ,  86  Atl.  264. 


46  INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

in  intrastate  commerce.  It  was  held  that  there  could 
be  no  recovery  under  the  federal  act  for  two  reasons, 
one  of  them  given  by  the  court  was  that  the  car  was 
not  used  in  interstate  commerce.  This  ruling  was 
erroneous  for  it  is  immaterial  whether  the  instru- 
mentality which  caused  the  injury  was  at  the  time 
being  used  in  interstate  commerce. 

In  a  case  which  has  been  very  frequently  cited  the 
rule  on  this  feature  is  clearly  stated  as  follows :  "I 
am  therefore  of  the  opinion  that  the  plaintiff  was 
at  the  time  engaged  in  interstate  commerce  and  enti- 
tled to  the  rights  secured  by  this  act.  (Plaintiff  was 
repairing  a  switch  on  tracks  used  indiscriminately 
for  both  kinds  of  commerce.)  That  being  so,  it  is  a 
matter  of  no  consequence  whether  the  train  that 
struck  him  was  engaged  in  that  commerce  or  not. 
It  is  true  that  the  act  is  applicable  to  carriers  only 
'while  engaged'  in  interstate  commerce,  but  that 
includes  every  activity  when  they  are  engaging  in 
such  commerce  by  their  own  employes.  In  short,  if 
the  employe  was  engaged  in  such  commerce,  so  was 
the  road,  for  the  road  was  the  master  and  the  serv- 
ant's act  its  act.  The  statute  does  not  say  that 
the  injury  must  arise  from  an  act  itself  done  in  in- 
terstate commerce,  nor  can  I  see  any  reason  for  such 
an  implied  construction."  ^^ 

§21.  Negligence  Need  Not  Be  Proven  when  Vio- 
lation of  Federal  Safety  Appliance  Act  Is  Cause  of 
Injury. — In  any  action  under  the  Federal  Employ- 
ers' Liability  Act,  where  the  cause  of  the  injury  or 

22.  Colasurdo  v.  Central  E.  Co.  of  New  Jersey,  180  Fed.  832, 
affirmed  in  113  C.  C.  A.  379,  192  Fed.  901. 


NEGLIGENCE   UNDER   THE   ACT  47 

death  is  shown  to  have  been  due  to  any  violation  of 
the  several  sections  of  the  Federal  Safety  Appliance 
Act,  the  plaintiff  is  not  required  to  show  negligence, 
for,  as  now  construed  by  the  courts,  the  Federal 
Safety  Appliance  Act  imposes  an  absolute  duty  upon 
the  carrier  to  comply  with  the  terms  thereof  in  the 
equipment  of  its  cars,  and  if  any  failure  to  comply 
with  the  law  causes  injury  or  death,  the  carrier  is 
absolutely  and  unconditionally  liable  for  the  result- 
ing injury  without  regard  to  the  question  whether 
the  defect  was  or  was  not  due  to  negligence  or  could 
have  been  discovered  by  reasonable  diligence.  In 
other  words,  the  carrier  is  liable  if  any  violation  of 
the  Federal  Safety  Appliance  Act  causes  injury  even 
though  the  defect  could  have  been  prevented  by  any 
degree  of  diligence.  That  law  does  away  with  the 
common  law  rule  making  liability  depend  upon  neg- 
ligence and  makes  the  carrier  absolutely  liable  for 
any  injury  resulting  from  the  use  of  a  car  not 
equipped  as  provided  by  that  act  or  by  the  orders  of 
the  Interstate  Commerce  Commission,  made  pur- 
suant to  the  authority  therein  delegated  to  that  body. 
In  one  case,  Mr.  Justice  Moody,  speaking  for  the 
Supreme  Court,  said:  "If  the  railroad  company 
itself  in  point  of  fact,  use  cars  which  do  not  comply 
with  the  standard,  it  violates  plain  prohibitions  of 
the  law  and  there  arises  from  that  violation  the  lia- 
bility to  make  compensation  to  one  who  is  injured 
by  it.  "23 

23.  St.  Louis,  I.  M.  &  S.  Ey.  Co.  v.  Taylor,  210  U.  S.  281,  52  L.  Ed. 
1061;  Chicago,  B.  &  Q.  R.  Co.  v.  United  States,  220  U.  S.  559,  55 
L.  Ed.  582;  Brinkmeier  v.  Missouri  P.  Ey.  Co.,  81  Kan.  101;  s.  c, 
224  U.  S.  268,  56  L,  Ed.  758,  3  N.  C.  C.  A.  795n ;  Atlantic  C.  L.  Ey. 


48  INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

§22.  Applicability  of  Doctrine  of  Res  Ipsa  Lo- 
quitur Under  Federal  Act — Conflicting  Rulings. — 

Whetlier  the  doctrine  of  res  ipsa  loquitur  is  applica- 
ble in  an  action  for  damages  under  the  federal  act 
where  the  particular  facts  of  a  case  permit  the  appli- 
cation of  such  a  rule  of  evidence  under  the  general 
law,  has  been  the  source  of  conflicting  decisions. 
The  supreme  courts  of  Minnesota  and  North  Caro- 
lina have  held  in  actions  of  negligence  between 
master  and  servant  under  the  federal  act  that  the 
doctrine  under  the  usual  and  proper  evidenciar^^ 
circumstances  applies.^^  On  the  other  hand  the  Fed- 
eral Circuit  Court  of  Appeals  for  the  Eighth  Circuit 
decided  that  the  doctrine  of  res  ipsa  loquitur  was 
not  applicable  in  actions  by  employes  against  car- 
riers by  railroad  under  the  federal  act.^^  The  de- 
cision of  the  court  in  the  Fulgham  case,  cited  in  the 
notes,  was  based  upon  former  decisions  of  other 
national  courts  including  the  Supreme  Court  of  the 
United  States  in  actions  of  general  negligence  but 
not  under  the  Federal  Employers'  Liability  Act. 
The  national  courts  prior  to  the  passage  of  the  Fed- 
eral Act  had  uniformly  held  that  the  evidential  rule 

Co.  V,  United  States,  94  C.  C.  A.  35,  168  Fed.  175 ;  United  States  v. 
Atchison,  T.  &  S.  F.  Ey.  Co.,  90  C.  C.  A.  327,  163  Fed.  517;  Chicago, 
R.  I.  &  P.  Ry.  Co.  V.  Brown,  229  U.  S.  317,  57  L.  Ed.  1204,  3  N.  C. 
C.  A.  826,  aflfirming  the  same  case  reported  in  107  C.  C.  A.  300,  185 
Fed.  80,  which  affirmed  the  same  case  reported  in  183  Fed.  80;  Wis- 
consin V.  Chicago,  M.  &  St.  P.  Ey.  Co.,  136  Wis.  407. 

24.  Wiles  V.  Great  N.  Ey.  Co.,  125  Minn.  348,  5  N.  C.  C.  A.  60; 
Eidge  V.  Norfolk  S.  Ey.  Co.,  —  N.  C.  — ,  83  S.  E.  762. 

25.  Midland  V.  E.  Co.  v.  Fulgham,  104  C.  C.  A.  151,  181  Fed.  91.     . 


NEGLIGENCE   UNDER   THE   ACT  49 

of  res  ipsa  loquitur  was  not  applicable  in  actions  for 
negligence  between  master  and  servant.^" 

In  a  very  recent  case  under  the  Federal  Employ- 
ers' Liability  Act  taken  to  the  United  States  Su- 
preme Court  by  writ  of  error  from  the  Supreme 
Court  of  South  Carolina  there  is  in  the  language  of 
the  court  in  affirming  the  case  an  equivocal  state- 
ment as  to  the  applicability  of  the  res  ipsa  loquitur 
rule,27  The  language  of  the  court  is  as  follows: 
''The  defendant  was  killed  by  the  falling  of  his  en- 
gine through  a  burning  trestle  bridge.  There  was 
evidence  tending  to  show  that  the  trestle  was  more 
or  less  rotten,  that  the  fire  was  caused  by  the  drop- 
ping of  coals  from  an  earlier  train  and  that  the 
engine  might  have  been  stopped  had  a  proper  look- 
out been  kept.  The  first  complaint  is  against  an 
instruction  to  the  effect  that,  if  a  servant  is  injured 
through  defective  instrumentalities,  it  is  prima  facie 
evidence  of  the  master's  negligence  and  that  the 
master  'assumes  the  burden'  of  showing  that  he  ex- 
ercised due  care  in  furnishing  them.  Of  course  the 
burden  of  proving  negligence  in  a  strict  sense  is  on 
the  plaintiff  throughout,  as  was  recognized  and 
stated  later  in  the  charge.  The  phrase  picked  out 
for  criticism  did  not  controvert  that  proposition  but 
merely  expressed  in  an  untechnical  way  that  if  the 
death  was  due  to  a  defective  instrumentality  and  no 

26.  Patton  v.  Texas  &  P.  By.  Co.,  179  U.  S.  658,  45  L,  Ed.  362, 
5  N.  C.  C.  A.  43n;  Chicago  &  N.  W.  E.  Co.  v.  O'Brien,  67  C.  C.  A.  421, 
132  Fed.  593 ;  Northern  P.  Ey.  Co.  v.  Dixon,  139  Fed.  737 ;  Hamilton 
V.  Kansas  C.  S.  E.  Co.,  123  Mo.  App.  619. 

27.  Southern  Ey.  Co.  v.  Bennett,  233  U.  S.  80,  58  L.  Ed.  860, 
affirming  the  same  ease  reported  in  —  S.  C.  — ,  79  S.  E.  710, 

Roberts  ■Liabilities —  4 


50  INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

explanation  was  given,  the  plaintiff  had  sustained 
the  burden.  The  instruction  is  criticised  further 
as  if  the  judge  had  said  res  ipsa  loquitur — which 
would  have  been  right  or  wrong  according  to  the  res 
referred  to.  The  judge  did  not  say  that  the  fall  of 
the  engine  was  enough,  but  that  proof  of  a  defect  in 
appliances  which  the  company  was  bound  to  use 
care  to  keep  in  order  and  which  usually  would  be  in 
order  if  due  care  was  taken,  was  prima  facie  evidence 
of  neglect.  The  instiiiction  concerned  conditions 
likely  to  have  existed  for  some  time  (defective  ash 
pan  or  damper  on  the  engine  and  rotten  wood  likely 
to  take  fire),  about  which  the  company  had  better 
means  of  information  than  the  plaintiff,  and  con- 
cerning which  it  offered  precise  evidence,  which, 
however,  did  not  satisfy  the  jury.  We  should  not 
reverse  the  judgment  on  this  ground,  even  if  an 
objection  was  open  to  an  isolated  phrase  to  which  no 
attention  was  called  at  the  time." 

§  23.  Cases  Under  Federal  Act  in  Which  the  Facts 
Were  Held  to  Show  Actionable  Negligence. — In  the 
following  actions  for  damages  under  the  federal  act 
it  was  held  that  the  facts  summarized  warranted  an 
inference  of  negligence  sufficient  to  submit  the  ques- 
tion to  a  jury.  A  railroad  bridge  which  had  been 
weakened  because  some  of  the  wooden  supports 
under  it  had  been  consumed  by  fire  collapsed  when 
an  engine  attached  to  a  rotary  snow  plow  passed 
over  it,  causing  the  death  of  the  engineer.  The  de- 
fendant's negligence  was  held  to  be  a  jury  ques- 
tion.2*    Decedent,  a  switchman  in  the  employ  of  a 

28.  Copper  E.  &  N.  W.  Ey.  Co.  v.  Eeed,   (C.  C.  A.)   211  Fed.  111. 


NEGLIGENCE   UNDER  THE  ACT  51 

railroad  company  while  engaged  in  making  up  an 
interstate  train,  was  run  over  and  killed  by  a  "  road ' ' 
engine  used  at  the  time  in  switching.  This  engine 
was  equipped  with  a  pilot  and  did  not  have  a  front 
footboard  with  which  regular  switch  engines  in  rail- 
road yards  are  usually  equipped.  Decedent  fell 
from  the  pilot  of  the  *  *  road ' '  engine  and  the  evidence 
disclosed  that  there  would  have  been  less  danger  for 
employes  if  the  engine  had  been  equipped  with  a 
footboard.  The  court  held  that  it  was  a  question 
for  the  jury  to  determine  whether  the  railroad  com- 
pany was  negligent  in  using  the  "road"  engine  in- 
stead of  a  regular  switch  engine.^^  A  conductor  of 
freight  train  was  killed  in  a  rear-end  collision.  One 
of  the  brakemen  working  under  him  neglected  to 
protect  the  rear  of  the  train  by  going  back  a,  certain 
distance  to  flag  approaching  trains  as  he  was  re- 
quired to  do.  It  was  held  that  the  brakeman's  neg- 
ligence, as  a  matter  of  law,  was  the  defendant's  neg- 
ligence.^^ A  gang  of  track  laborers  were  returning 
from  their  work  on  several  handcars  which  were  a 
short  distance  apart.  One  of  these  cars  on  which 
plaintiff  was  riding  collided  with  the  car  just  ahead 
of  it,  causing  plaintiff's  injuries.  It  was  shown  that 
the  men  on  the  car  in  front  of  plaintiff's  car  without 
any  warning  suddenly  materially  reduced  the  speed 
of  their  car  and  the  collision  followed.  The  court 
held  that  the  question  whether  the  defendant's  em- 
ployes on  the  first  car  were  negligent  was  properly 

29.  Louisville  &  N.  E.  Co.  v,  Lankford,  126  C.  C.  A,  247,  209  Fed. 
321,  6  N.  C.  C.  A.  86d,  106n. 

30.  Pennsylvania    Ry.    Co.    v.    Goughnour,    126    C.   C.    A,    39,   208 
Fed.  961, 


52  INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

a  question  for  tlie  jiiiy.^^  Whether  a  railroad  com- 
pany was  negligent  in  failing  to  inspect  a  box  car 
after  the  roof  was  blown  off  and  before  the  said  con- 
dition of  the  box  car  caused  an  injury  to  an  employe, 
was  properly  submitted  to  a  jury  for  determina- 
tion.^- Plaintiff  was  assisting  in  repairing  a  rail- 
road bridge  by  preparing  the  points  and  heads  of 
pilings  so  that  they  might  be  driven  with  a  pile- 
driver.  He  attached  a  rope  to  a  pile  so  that  it  might 
be  hoisted  by  the  pile-driver  and  moved  into  the 
place  where  it  was  to  be  driven.  Plaintiff  then 
crossed  to  the  other  side  of  the  track  when  the  pile, 
in  being  raised,  swung  over  and  struck  him.  There 
was  evidence  tending  to  show  that  if  the  engineer 
operating  the  pile-driver  engine  had  held  the  line 
as  it  was  his  duty  to  do,  the  piling  would  have  swung 
across  from  one  side  of  the  track  to  the  other  high 
enough  to  avoid  hitting  the  plaintiff.  The  question 
of  the  engineer's  negligence  was  properly  submitted 
to  the  jury.^^  A  section  hand,  while  sweeping  snow 
from  the  switches  of  a  main  line  on  a  cold,  windy, 
dark  night,  was  struck  and  killed  by  a  train  running 
at  a  speed  of  35  miles  an  hour  without  the  bell  ring- 
ing or  whistling  except  that  the  whistle  was  blown 
at  the  whistling  post  before  reaching  the  station. 
The  track  at  the  point  was  straight  and  the  engine 
had  a  headlight  which  would  show  objects  for  a  dis- 
tance of  1,000  feet.    The  men  in  charge  of  the  train 

31.  San  Pedro,  L.  A.  &  ^'.  R.  Co.  v.  Davide,  127  C.  C.  A.  454,  210 
Fed.  870,  6  N.  C.  C.  A.  197n. 

32.  Eidge  v.  Norfolk  S.  Ry.  Co.,  —  N.  C.  — ,  83  S.  E.  762. 

33.  Smith  v.  Northern  P.  R.  Co.,  —  Wash.  — ,  5  N.  C.  C,  A.  947, 
6  N.  C.  C.  A.  85n,  92n,  140  Pac,  685. 


NEGLIGENCE    UNDER   THE   ACT  53 

knew  that  on  such  nights  section  men  worked  at 
switches  to  keep  them  clear  of  snow.  The  court 
held  that  on  the  question  of  the  defendant's  negli- 
gence the  cause  was  properly  submitted  to  the  jury.^^ 
A  large  number  of  boxes  had  been  standing  for  sev- 
eral weeks  on  a  platform  within  a  foot  of  a  passing 
car.  A  passenger  train  passed  by  this  platform  and 
the  steps  attached  to  the  side  of  the  baggage  car 
were  torn  away  by  striking  some  of  these  boxes 
which  had  toppled  over  a  few  hours  before.  Shortly 
thereafter  the  baggageman  on  the  train  as  it  ap- 
proached another  station,  fell  to  the  ground  because 
of  the  absence  of  the  steps.  In  leaving  the  boxes 
unsecured  so  that  they  might  cause  damage  to  a 
passing  train,  the  court  held  that  the  defendant  was 
guilty  of  actionable  negligence  imder  the  federal 
act.^^  A  passenger  train  stopped  at  night  on  a 
trestle  bridge  which  was  floored  on  one  side  of  the 
track  but  not  on  the  other.  The  train  porter  on  the 
command  of  the  conductor  who  knew  the  condition 
of  the  trestle,  stepped  from  the  train  on  the  side  that 
was  not  floored,  fell  several  feet  to  the  ground  and 
was  injured.  He  had  been  ordered  by  the  conductor 
to  get  off  the  train  in  order  to  carry  an  oil  can  to 
the  engineer.  The  porter  was  ignorant  of  the  con- 
dition of  the  bridge.  The  court  held  that  the  con- 
ductor as  the  agent  of  the  defendant  was  negligent 
in  failing  to  inform  the  porter  as  to  the  proper  side 
of  the  bridge  for  him  to  alight  and  that  said  neg- 

34.  Hardwick  v.  Wabash  E.  Co.,  181  Mo.  App.  156. 

35.  Ferebee  v.  Norfolk  S,  Ry.  Co.,  —  N.  C.  — ,  4  N.  C.  C.  A.  220n, 
79  S.  E.  685. 


54  INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

ligence,  under  the  federal  act,  was  the  proximate 
cause  of  the  injury.^"  A  petition  in  an  action  under 
the  federal  act  stated  that  the  plaintiff  was  a  fireman 
on  an  interstate  train;  that  as  the  train  approached 
close  to  a  place  where  the  track  had  been  torn  up 
for  repairs,  a  flagman,  one  of  the  laborers  on  the 
track,  ran  excitedly  towards  the  train  and  signaled 
the  engineer  to  stop.  The  emergency  brakes  were 
quickly  applied  and  the  plaintiff,  seeing  the  flagman 
and  the  track  torn  up,  jumped  from  the  engine  and 
was  injured.  It  was  alleged  that  the  plaintiff's  in- 
juries were  caused  by  the  negligence  of  the  defend- 
ant in  failing  to  have  a  flagman  a  sufficient  distance 
away  from  where  the  employes  were  working  on 
the  track  so  that  the  train  could  be  stopped  before 
reaching  the  point.  The  petition  was  held  to  state 
a  good  cause  of  action  under  the  federal  act.^^  A 
bridge  carpenter  was  at  work  on  a  double  track 
bridge  within  fifty  feet  of  a  curved  tunnel  on  the 
west  and  on  the  east  approach  there  was  another 
curve  in  a  cut.  The  foreman  took  no  precaution  to 
protect  the  workmen  by  sending  out  flagmen.  He 
only  stood  on  the  east  bound  track  and  called  ' '  rail- 
road" or  "clean  up"  on  observing  the  approach  of 
a  train.  It  was  held  that  the  company  was  guilty 
of  negligence  under  the  federal  act  in  failing  to  pro- 
tect the  bridge  carpenters  with  flags.^^  Whether  a 
railroad  company  was  negligent  in  failing  to  illumi- 

36.  Missouri,  K.  &  T.  Ey.  Co.  v.  Bimkley,  —  Tex.  Civ.  App.  — , 
5  N.  C.  C.  A.  583n,  153  S.  W.  937. 

37.  Charleston  &  W.  C.  R.  Co.  v.  Brown,  13  Ga.  App.  744. 

38.  Norfolk  &  W.  R.  Co.  v.  Holbrook,  215  Fed.  687;  s.  c,  (C.  C.  A.), 
215  Fed.  1007,  reversed  on  other  grounds  by  United  States  Supreme 


NEGLIGENCE   UNDER   THE   ACT  55 

nate  and  guard  an  opening  in  a  platform  tunnel,  was 
held,  in  an  action  uder  the  federal  act,  under  the 
evidence  to  be  a  question  for  the  jury.^^  A  switch- 
man, while  walking  along  a  track  in  a  terminal  rail- 
road yard  at  night,  was  struck  and  killed  by  an  en- 
gine moving  slowly  and  almost  noiselessly  in  the 
same  direction.  The  engine's  headlight  was  very 
dim  and  a  train  on  another  track  nearby  was  passing 
at  the  same  time  making  considerable  noise.  The 
engine  which  struck  the  switchman  could  have  been 
stopped  within  a  few  feet  but  the  engineer  did  not 
see  the  decedent.  It  was  held  that  these  facts  con- 
stituted sufficient  evidence  of  negligence  and  a  ver- 
dict for  the  plaintiff  was  affirmed. ^°  Whether  a 
cinder  pile  placed  near  a  track  in  a  railroad  yard 
constituted  a  ' '  defect  due  to  negligence ' '  within  the 
meaning  of  the  federal  act,  was  a  question  for  the 
jury  to  pass  upon.^^  A  railroad  employe,  while  rid- 
ing on  the  side  of  a  box  car  at  night,  struck  a  switch 
stand  and  was  injured.  In  a  subsequent  action  for 
damages  under  the  federal  act,  the  court  held  that 
the  question  of  the  defendant's  negligence  in  main- 
taining the  switch  stand  too  close  to  the  track  was, 
under  the  evidence,  a  matter  for  the  juiy  to  deter- 
mine.^^ An  engineer  in  stopping  a  train  and  caus- 
ing such  an  unusual  and  sudden  jolt  as  to  throw  an 

Court  (January  5,  1915),  235  U.  &'.  625,  59  L.  Ed.  — .  See  §88, 
infra. 

39.  Copper  Eiver  N.  W.  Ky.  Co.  v.  Henney  (C.  C.  A.),  211  Fed.  459. 

40.  Southern  Ey.  Co.  v.  Smith,  123  C.  C.  A.  488,  205  Fed.  360. 

41.  Southern  Ey.  Co.  v.  Jacobs,  —  Va.  — ,  6  N.  C.  C.  A.  94n,  186n, 
81  S.  E.  99. 

42.  McDonald  v.  Eailway  T.  Co.,  121  Minn.  273. 


56  INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

employe  from  a  ladder  on  a  side  of  a  car  was  guilty 
of  negligence  under  the  federal  act.^^  When  a  rail- 
road company  caused  some  cars  to  be  "kicked"  at 
night  without  warning  and  without  light  along  a 
track  in  a  terminal  yard,  its  negligence  in  so  doing 
was  a  jury  question.^^  A  brakeman,  while  switching 
cars  from  a  train  to  a  side  track  at  night  and  riding 
on  the  side  of  a  box  car,  was  struck  and  injured  by 
other  cars  standing  on  the  adjoining  track  which 
had  not  been  shoved  far  enough  from  the  switch  to 
be  ' '  in  the  clear. ' '  The  brakeman  knew  of  the  pres- 
ence of  the  standing  cars  but  did  not  know  how  far 
they  had  been  placed  from  the  switch  joining  the 
two  tracks.  He  proceeded  to  investigate  before 
making  the  switching  movement  but  before  ascer- 
taining the  condition  of  the  cars  he  was  assured  by 
a  fellow  brakeman  that  the  standing  cars  could  be 
passed  with  safety  and  relying  upon  this  assurance, 
he  proceeded  with  the  switching  movement  and  was 
injured  by  coming  in  contact  with  the  cars.  In  an 
action  under  the  federal  act  it  was  held  that  his 
fellow  brakeman 's  statement  constituted  actionable 
negligence."*^  A  switchman  while  assisting  in  *' pol- 
ing" a  car,  was  crushed  to  death  between  the  engine 
and  the  car.  There  was  evidence  pro  and  con  as  to 
the   proper   method    in    such   movements    of    cars. 

43.  LaMere  v.  Eailway  T.  Co.,  125  Minn.  526,  6  N.  C.  C.  A.  97n, 
lOOn;  Fort  Worth  &  D.  C.  Ey.  Co.  v.  Stalcup,  —  Tex.  Civ.  App.  — , 
167  S.  W.  279;  Chvens  v.  Chicago  G.  W.  R.  Co.,  133  Minn.  49; 
Vaughan  v.  St.  Louis  &  S.  F.  E.  Co.,  177  Mo,  App.  155,  6  N.  C.  C.  A. 
75n,  438n,  439n. 

44.  Colasurdo  v.  Central  R.  Co.  of  New  Jersey,  180  Fed.  832 ;  s.  c, 
113  C.  C.  A.  379,  192  Fed.  901. 

45.  Skaggs  V.  niinois  C.  E.  Co.,  124  Minn.  503. 


NEGLIGENCE   UNDER   THE   ACT  57 

Whether  the  method  actually  used  by  direction  of 
the  foreman  was  negligent  and  caused  the  death  of 
the  decedent,  was  held,  under  the  evidence,  to  be  a 
jury  question.'*^  A  track  laborer  taking  out  old 
ties  from  the  main  line  when  a  train  approached  on 
that  track,  stepped  on  an  adjoining  track  where  he 
was  struck  and  killed  by  a  switch  engine  which  ap- 
proached without  any  warning.  Witnesses  testified 
that  it  was  customary  for  switching  crews  to  give 
warning  to  track  laborers.  It  was  held  that  the 
question  of  the  negligence  of  the  employes  in  charge 
of  the  switch  engine  was  properly  submitted  to  the 
jury.^^  A  glass  attached  to  a  lubricator  on  an  engine 
exploded  and  blew  the  shield  around  it  against  an 
engineer's  face  causing  the  loss  of  an  eye.  The  lu- 
bricator in  question  was  a  kind  called  "Nathan" 
wl^ich  sometimes  explodes.  Seventy-five  per  cent 
of  the  -defendant's  engines  were  equipped  with  a 
kind  of  lubricator  known  as  * '  Bull 's  Eye ' '  which  did 
not  explode.  The  ' '  Nathan ' '  lubricators  had  been  in 
use  for  twenty  years  but  for  three  years  before  the 
date  of  plaintiff's  injury  this  kind  had  been  replaced 
on  most  of  the  engines  by  the  "Bull's  Eye"  lubri- 
cators. Whether  the  defendant  committed  a  negli- 
gent act  in  continuing  to  furnish  the  engine  on  which 
plaintiff  was  working  with  a  "Nathan"  lubricator 
instead  of  a  "Bull's  Eye,"  was  a  question  for  the 

46.  Sweet  v.  Chicago  &  N.  W.  Ey.  Co.,  157  Wis.  400,  6  N.  C.  C.  A, 
78u,  94n,  232n,  451n. 

47.  Bombolis  v.  Minneapolis  &  St.  Tj_  j{_  rjo     —  Miim.  — ,  150 
N.  W.  385. 


58  INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

jury.^^  A  car  foreman  while  on  duty  had  the  ex- 
clusive possession  of  certain  keys  which  unlocked 
the  switches  of  a  certain  repair  track  in  a  terminal 
yard.  Decedent,  a  car  repaired,  while  working  on 
this  track  was  ordered  by  the  foreman  to  go  to  an- 
other track  in  the  yard  to  make  slight  repairs  to  a 
car.  While  he  was  absent  the  foreman  ordered  the 
switching  crew  to  take  out  some  cars  from  the  repair 
track  and  place  others  in  there  for  repair.  Having 
no  knowledge  of  the  foreman's  order  or  that  cars 
were  being  switched  onto  the  repair  track,  the  car 
repairer  returned  and  while  at  work  on  a  car  stand- 
ing on  the  repair  track,  the  car  was  struck  by  other 
cars  shoved  in  on  the  repair  track  by  the  switching 
crew  causing  the  death  of  the  car  repairer.  It  was 
held  that  whether  the  foreman  was  negligent  in  fail- 
ing to  anticipate  that  the  car  repairer  would  return 
before  the  switching  was  completed  and  in  failing  to 
warn  the  decedent,  was  not  a  question  of  law  but  a 
question  of  fact  to  be  solved  by  the  jury.^^  A  rail- 
road employe  was  ordered  by  the  conductor  to  couple 
an  engine  to  a  way  car.  Upon  the  first  effort,  the 
coupling  failed.  The  way  car  was  knocked  back 
some  distance.  The  deceased  stepped  in  to  fix  the 
pins  and  then  signaled  the  fireman  to  couple  up,  but 
the  caboose  again  failed  to  make  the  coupling.  The 
deceased  again  stepped  in  to  adjust  the  coupling  and 
while  standing  near  the  draw  bar  the  caboose  sud- 

48.  Bower  v.  Chicago  &  N.  W.  Ey.  Co.,  —  Neb.  — ,  6  N.  C.  C.  A. 
213n,  148  N.  W.  145. 

49.  Evans    v.    Detroit,    G.    H.    &    M.    Ry.    Co.,    —   Mich   — ,   148 
N.  W.  490. 


NEGLIGENCE   UNDER   THE  ACT  59 

denly  moved  down  upon  him,  causing  his  death.  It 
was  held  that  the  evidence  was  sufficient  to  show  a 
violation  of  the  Federal  Safety  Appliance  Act  and 
that  such  violation  caused  his  death.^*^  Decedent,  a 
car  inspector,  was  run  over  and  killed  at  night  on  a 
track  in  a  railroad  terminal  yard  by  some  cars 
backed  up  by  a  switch  engine  without  warning, 
without  lights  and  with  no  one  on  the  end  of  the  first 
car  to  warn  him  of  danger.  In  an  action  under  the 
federal  act  it  was  held  that  the  question  of  the  de- 
fendant's negligence  was  properly  submitted  to  the 
jury.^^  A  section  laborer  in  a  railroad  yard  stepped 
on  a  certain  track  for  purposes  of  his  own,  the  evi- 
dence being  conflicting  as  to  whether  he  was  between 
two  cars  or  at  the  end  of  a  car  standing  on  the  track. 
While  so  standing  he  was  struck  by  some  cars 
switched  upon  the  track.  There  was  evidence  that 
there  was  no  one  on  these  cars  in  a  suitable  position 
to  warn  employes  of  their  approach  and  there  was 
also  evidence  that  the  section  foreman  knew  that 
the  laborer  was  in  a  position  of  danger  on  the  track 
and  that  he  by  exercising  ordinary  care  could  have 
seen  the  approaching  cars  in  time  to  have  warned 
the  decedent.  It  was  held  under  these  facts  that  the 
cause  was  properly  submitted  to  the  jury  under  the 
federal  act.^^ 

50.  Montgomery    v.    Carolina    &    N.    W.    R.    Co.,    163    N.    C.    597, 
6  N.  C.  C.  A.  88n. 

51.  Thornton  v.  Seaboard  A.  L.  By.  Co.,  —  S.  C.  — ,  6  N.  C.  C.  A. 
85n,  93n,  82  S.  E.  433. 

52.  Louisville  &  N.   R.   Co.  v.  Johnson's  Adm'x,  —  Ky,  — ,   171 
S.  W.  847. 


60  INJURIES  TO  INTERSTATE  EMPLOYES  ON  EAILBOADS 

§  24.  Cases  Under  Federal  Act  in  Which  the  Facts 
Were  Held  Not  to  Show  Actionable  Negligence. — An 
electric  passenger  car  while  running  from  one  state 
to  another  was  derailed  in  the  state  of  Ohio  causing 
the  death  of  the  motorman.  Under  a  statute  of  Ohio 
proof  of  a  defect  in  the  wheels  of  the  car  was  suf- 
ficient to  create  a  prima  facie  case  of  negligence  but 
as  the  action  was  prosecuted  under  the  federal  act 
the  state  statute  was  inoperative  for  the  reason  that 
under  the  federal  act  a  common  carrier  by  railroad 
is  not  liable  unless  the  death  is  the  result  of  defects 
"due  to  negligence"  and  a  recovery  was  denied.^^ 
An  engine  repairer  in  a  roundhouse  had  his  hand 
crushed  between  a  pilot  beam  and  a  jack  while  at- 
tempting to  lower  the  front  end  of  a  locomotive 
engine.  He  claimed  that  the  engine  dropped  because 
another  jack  on  the  other  side  of  the  engine  slipped 
and  that  this  in  turn  was  due  to  the  fact  that  a 
wrench  was  used  as  a  substitute  for  a  lever.  The  court 
held  that,  under  the  evidence,  the  plaintiff  failed  to 
show  that  an  act  of  negligence  caused  the  injury.^^ 
A  fireman  on  an  engine  saw  a  track  walker  walking 
in  a  place  of  safety  between  two  tracks  with  his  back 
to  the  train.  The  engine  bell  was  ringing;  but  as  the 
train  came  close  to  the  track  walker,  he  suddenly 
stepped  from  between  the  tracks  on  the  track  on 
which  the  train  was  approaching  and  was  run  over 
and  killed.  He  could  not  have  been  seen  by  the  en- 
gineer because  of  a  curve.    A  jury  returned  a  verdict 

53.  South  Covington  &  C.  St.  R.  Co.  v.  Finan  's  Adm  'x,  153  Ky.  340. 

54.  Winters  v.  Minneapolis  &  St.  L.  E.  Co.,  —  Minn.  — ,  6  N.  C. 
C.  A.  78n,  201n,  148  N.  W.  106. 


NEGLIGENCE    UNDER   THE   ACT  61 

against  the  railroad  company  and  found  that  the 
death  of  the  track  walker  was  due  in  part  to  the  neg- 
ligence of  the  fireman  in  failing  to  request  the  en- 
gineer to  sound  the  whistle  when  the  decedent  was 
first  seen  by  the  fireman  while  walking  between  the 
tracks.  It  was  held  that  the  fireman  was  not  negli- 
gent in  failing  to  anticipate  that  the  decedent  would 
step  from  a  place  of  safety  on  a  track  directly  in 
front  of  an  approaching  train  and  the  cause  was 
reversed.^^  Plaintiff,  a  student  fireman,  was  given 
a  letter  by  the  defendant  railroad  company  permit- 
ting him  to  ride  on  the  engines  of  all  freight  trains 
to  prepare  himself  for  the  duties  of  a  fireman.  He 
boarded  an  engine  of  one  train  and  was  informed  by 
the  fireman  that  it  was  not  a  suitable  train  to  learn 
firing  on  and  he  was  advised  to  get  off  and  then  get 
on  another  train  running  in  the  opposite  direction 
at  a  certain  place  over  which  all  trains  ran  under 
"slow  orders."  He  was  told  that  the  train  would 
pass  that  place  running  only  six  miles  an  hour  and 
that  he  could  easily  get  on.  The  plaintiff  did  so  and 
in  attempting  to  get  on  the  other  train  was  thrown 
under  the  wheels  and  injured.  He  attributed  his 
injuries  to  the  excessive  speed  of  the  train  of  which 
he  had  no  knowledge,  but  assumed,  on  the  assur- 
ance of  the  fireman  of  the  other  train,  that  it  was 
only  running  at  the  rate  of  six  miles  per  hour.  He 
had  had  no  experience  in  judging  the  speed  of  train. 
The  court  held  that  there  was  no  duty  towards  the 
plaintiff  to  run  the  train  at  six  miles  an  hour  and 

55.  New   York,  N.  H.  &  H.  R.  Co.  v.  Portillo    (C.  C.   A.),  211 
^d.  331. 


62  INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

consequently  no  negligence. ^'^  Plaintiff,  a  section 
foreman,  was  riding  with  a  force  of  men  on  a  hand 
car  while  inspecting  the  tracks.  A  flagman  had 
preceded  the  section  hands  along  the  track  so  as  to 
give  them  warnings  of  approaching  trains.  Sud- 
denly a  freight  train  running  at  a  high  rate  of  speed 
came  in  sight  from  around  a  curve  and  the  flagman 
promptly  warned  the  men  on  the  handcar.  Because 
of  the  close  proximity  of  the  train  when  it  was  dis- 
covered, owing  to  the  curve  which  obstructed  the 
view,  the  men  on  the  handcar  acted  promptly,  and 
to  prevent  a  threatened  collision  quickly  removed 
the  car.  The  plaintiff  in  assisting  strained  himself 
and  sustained  injuries.  The  court  found  that  under 
the  facts  neither  the  flagmen  or  the  train  employes 
were  negligent  and  that  as  it  was  necessary  for  the 
plaintiff  in  an  action  under  the  federal  act  to  show 
by  the  evidence  that  his  injuries  were  caused  in 
whole  or  in  part  by  the  defendant's  negligence  or 
its  employes,  there  was  no  liability.^  "^  Two  section 
men,  each  holding  one  end  of  a  tie,  started  to  toss 
the  tie  on  a  flat  car.  The  tie  was  in  a  wet,  slippery 
condition  and  this  caused  it  to  turn  as  it  was  being- 
tossed  on  the  car.  One  of  the  two  laborers,  by  reason 
of  the  tie  slipping  and  turning,  had  his  finger  caught 
between  the  tie  and  the  floor  of  the  car,  causing  it  to 
be  pinched  off.  In  a  subsequent  action  under  the 
federal  act,  it  was  held  that  the  facts  disclosed  did 

56.  Cincinnati,  N.  O.  &  T.  P.  Ry.  Co.  v.  Wheeler,  —  Ky.  — ,  169 
S.  W.  690. 

57.  Louisville  &  N.  R.  Co.  v.  Kemp,  140  Ga.  657,  6  N.  C.  C.  A. 
75n,  196n. 


NE<5LIGENCE   UNDER   THE   ACT  63 

not  show  negligence  within  the  meaning  of  the  act, 
but  that  the  plaintiff's  injury  was  due  to  an  accident 
without  any  causal  negligence  contributing.^^  Steam 
escaped  from  a  steam  pipe  attached  to  a  steam  chest 
on  a  ferry  boat  used  by  a  railroad  company  as  a  part 
of  its  line.  The  escaping  steam  caused  the  death  of 
an  employe  on  the  boat  and  it  was  held  in  an  action 
for  his  death  by  the  administrator  on  behalf  of  the 
beneficiaries  named  in  the  federal  act  that  as  there 
was  no  evidence  produced  tending  to  show  that  the 
escape  of  the  steam  and  the  breaking  of  the  pipe 
was  due  to  some  negligence  on  the  part  of  the  owner, 
there  could  be  no  recovery. ^^  A  brakeman  while 
switching  cars  at  night  and  knowing  that  cars  were 
being  shoved  back  in  response  to  his  signal  to  the 
engineer,  placed  himself  between  the  track  on  which 
the  cars  were  approaching  and  a  freight  loading 
platform  where  the  space  between  the  platfoim  and 
a  car  was  only  a  few  inches  and  too  narrow  for  a 
man  to  stand  with  safety.  While  the  cars  were  still 
about  twenty  feet  away  from  him,  the  conductor 
warned  him  of  the  dangerous  place  he  was  in  and 
told  him  to  get  out.  Then  the  brakeman  set  his 
lantern  on  the  platform,  placed  his  hands  upon  the 
platform  and  tried  to  vault  onto  the  platform  but 
before  he  succeeded  the  end  of  the  car  caught  him 
and  crushed  him  between  the  car  and  the  platform. 
It  was  held  that  no  negligence  of  the  defendant  con- 
tributed either  in  whole  or  in  part  to  cause  the 

58.  Long  V.  Southern  Ry.  Co.,  —  Ky.  — ,  159  S.  W.  779. 

59.  The  Passaic,  190  Fed.  644 ;  s.  c,  122  C.  C.  A.  466,  204  Fed.  266. 


64  INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

death.'''^  A  conductor  was  walking  along  the  side  of 
his  train  taking  the  numbers  of  the  cars  while  the 
crew  was  making  up  the  train.  Starting  at  the  rear 
of  the  train  there  were  first,  three  cars;  second,  a 
space  of  18  or  20  feet;  third,  three  more  cars;  fourth, 
a  space  of  several  feet,  and,  fifth,  a  long  string  of 
freight  cars  with  the  engine  at  their  head.  When  the 
conductor  reached  the  rear  of  the  forward  three  cars, 
he  gave  the  lift  pin  lever  a  jerk,  and  then,  reached 
in  to  put  his  hand  on,  or  actually  took  hold  of  the 
coupler  when  the  forward  end  of  the  train  struck 
the  forward  end  of  the  three  cars  in  the  act  of 
coupling  to  them,  knocked  him  down  and  ran  over 
him.  The  car  to  which  the  coupler  was  attached  had 
been  inspected  shortly  before  the  accident  and  the 
inspectors  had  found  no  defect.  Several  witnesses 
examined  and  operated  the  coupler  and  the  lift  pin 
lever  immediately  after  the  accident  and  found  them 
in  good  condition  and  operating  perfectly.  It  was 
held  that  under  this  state  of  facts  the  verdict  of  the 
jury  that  the  coupler  was  so  defective  at  the  time 
of  the  accident  that  "it  would  not  couple  auto- 
matically by  impact  without  the  necessity  of  men 
going  in  between  the  car"  as  required  by  the  Federal 
Safety  Appliance  Act,  was  based  on  conjecture  and 
could  not  be  sustained.®^  A  section  hand  was  riding 
on  a  tricycle  on  a  railroad  track  with  his  foreman. 
Tools  were  also  being  carried.  The  foreman  ordered 
the  laborer  to  stop  the  car  with  the  brake  and  when 

60.  Pankey  v.  Atchison,  T.  &  S.  F.  R.  Co.,  180  Mo.  App.  185. 

61.  Midland  V.  R.  Co.  v.  Fulgham,  104  C.  C.  A.  151,  181  Fed.  91, 
reversing  the  same  case  reported  in  167  Fed.  660, 


NEGLIGENCE   UNDER  THE  ACT  65 

he  attempted  to  do  this  with  his  hand,  his  arm  came 
in  contact  with  the  tools  on  the  car  causing  his 
fingers,  in  some  way  not  clearly  shown,  to  be  caught 
in  the  cog  wheels,  injuring  him.  It  was  claimed  in 
a  suit  under  the  federal  act  that  the  foreman  was 
negligent  in  ordering  the  laborer  to  apply  the  brakes 
as  in  doing  so  he  might  probably  come  in  contact 
with  the  tools  and  be  injured.  The  court  held  that 
such  an  act  on  the  part  of  a  foreman  was  not  negli- 
gence and  that  the  injury  was  caused  by  an  accident 
without  any  negligence  contributing  thereto.*'^ 

§  25.  Wilful  Wrongs  Not  Within  Terms  of  the  Act. 
— By  its  terais  the  national  act  is  limited  to  negligent 
acts  of  a  common  carrier.  Under  well-known  prin- 
ciples of  law,  injuries  caused  by  the  wilful  or  inten- 
tional acts  of  another  are  not  within  the  terms  of 
the  statute,  for,  as  quaintly  said  by  one  jurist,  "when 
wilfullness  comes  in  at  the  door  negligence  goes  out 
through  the  window. ' '  Most  statutes,  giving  rights 
of  action  for  death,  define  the  wrongful  act  as  the 
'* wrongful  act,  neglect  or  default  of  another"  which 
would  include  intentional  wrongs;  but  the  federal 
act,  for  some  reason,  has  confined  the  wrongful  acts 
for  which  a  recovery  can  be  had,  to  those  which  are 
due  to  negligence  solely.  A  wilful  assault  of  one 
employe  upon  another  would  be  beyond  the  terms 
of  the  statute. 

ea.  Cinciimati,  N.  O.  &  T.  P.  Ey.  Co.  v.  HiU,  —  Ky.  — ,  170 
S.  W.  599. 


Roberts  liabilities— 5 


CHAPTER  III 

EMPLOYES  INCLUDED  WITHIN  THE 
FEDERAL  ACT 

§  26.  Statute  Includes  Only  Employes  Injured  While  Engaged  in 
Interstate  Commerce. 

§  27.  Servants  Engaged  in  Both  Kinds  of  Commerce. 

§  28.  Train  Men  on  Interstate  Trains  Are  Employed  in  Interstate 
Commerce. 

§  29.  When  Train  Men  Are  Not  Engaged  in  Interstate  Commerce. 

§  30.  Bridge  Workers  and  Carpenters  Employed  in  Interstate  Com- 
merce, When. 

§  31.  When  Car  Eepairers  and  Roundhouse  Employes  Are  Engaged  in 
Interstate  Commerce. 

§  32.  When  Car  and  Engine  Eepairers  Are  Not  Engaged  in  Inter- 
state Commerce. 

§  33.  Test  in  Determining  When  Switching  Crews  Are  Engaged  in 
Interstate  Commerce. 

§  34.  Switching  Crews  Engaged  in  Interstate  Commerce. 

§  35.  Switching  Cars  Containing  Intrastate  Shipments  Into  or  Out 
of  Interstate  Trains — Conflicting  Eulings. 

§  36.  Section  Men  and  Track  Laborers,  j 

§  37.  Employes  Preparing  or  Mo\ang  Materials  or  Instrumentalities 
to  Be  Used  on  Interstate  Trains. 

§  38.  Employes  Preparing  Interstate  Trains  for  Movement. 

§  39.  Employes  on  Premises  of  Eailroad  Going  To  or  From  Work. 

§  40.  Employes  Engaged  in  the  Original  Construction  of  Instrumental- 
ities for  Future  Use  in  Interstate  Commerce  Not  Within 
the  Act. 

§  41.  Eepairing  or  Eebuilding  Instrumentalities  Used  in  Interstate 
Commerce. 

§  42.  Yard  Clerks  Engaged  in  Interstate  Commerce,  When. 

§  43.  Pullman  Employes. 

§  44.  Agents  of  Express  Companies. 

§  45.  Miscellaneous  Employes. 

§  46.  Instances  Where  Employes  Were  Engaged  in  Interstate  Com- 
merce but  Erroneously  Held  to  Have  Been  Engaged  in  Intra- 
state Commerce. 

66 


EMPLOYES    WITHIN    THE   ACT  67 

§  47.  Instances  Where  Employes  Were  Engaged  Exclusively  in  Intra- 
state Commerce  but  Erroneously  Held  by  the  Courts  to  Have 
Been  Engaged  in  Interstate  Commerce. 

§  48.  Employes  Presumed  to  Be  Engaged  in  Intrastate  Commerce. 

§  49.  Intrastate  Employes  Injured  by  Negligence  of  Interstate  Em- 
ployes or  Instrumentalities  of  Interstate  Commerce  Have  No 
Eemedy  Under  Federal  Act. 

§  50.  Decisions  Construing  Federal  Safety  Act  Not  Always  Appli- 
cable in  Construing  Employers'  Liability  Act. 

§  51.  When  Question  of  Employment  in  Interstate  Commerce  Should 
Be  Submitted  to  Jury. 

§  26.  Statute  Includes  Only  Employes  Injured 
While  Eng^aged  in  Interstate  Commerce. — The  stat- 
ute provides  that  a  common  carrier  by  rail,  while 
engaging  in  interstate  commerce,  is  liable  for  in- 
juries or  death  to  an  employe,  due  to  negligence, 
"while  he  is  employed  by  such  carrier  in  such  com- 
merce." The  employe  must  have  been  at  the  time 
of  the  injury  engaged  in  interstate  commerce. 
Frequently  a  troublesome  question  arises  as  to 
whether  a  servant  is  employed  in  interstate  or  intra- 
state commerce  at  the  time  of  the  accident,  for,  if  the 
former,  the  remedy,  if  any,  given  by  the  federal  act 
is  exclusive,  while  if  the  latter,  the  state  law  alone 
furnishes  the  remedy,  even  though  at  the  time  the 
carrier  itself  was  engaged  in  interstate  commerce. 
Both  must  be  so  engaged  to  render  the  federal  act 
applicable.  If  the  reader  bears  in  mind  that  Con- 
gress in  passing  the  act,  was  not  regulating  the 
rights  and  liabilities  of  employers  and  employes 
as  such,  but  was  primarily  regulating  and  promoting 
the  safety  of  those  engaged  in  interstate  commerce, 
and  for  that  purpose  incidentally  declared  the  rights 
and  liabilities  of  all  railroads  and  employes  only. 


68  INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

while  both  were  engaged  in  such  commerce,  many 
difficulties  in  the  solution  of  such  a  question  dis- 
appear.^ 

§  27.  Servants  Engaged  in  Both  Kinds  of  Com- 
merce.— Although  an  employe  is  at  the  time  engaged 
in  intrastate  commerce  as  well  as  interstate  com- 
merce, as,  for  instance,  an  employe  on  a  train  hauling 
both  kinds  of  commerce  or  a  carpenter  repairing  a 
bridge  over  which  both  kinds  of  commerce,  are 
carried,  yet  if  injured  under  such  circumstances,  he 
cannot  take  his  choice  of  remedy  under  the  state 
and  federal  law,  for  the  courts  hold  that  he  is  then 
engaged  in  interstate  commerce  and  the  remedy 
given  by  the  national  act  is  exclusive.^  An  extreme 
and  a  proper  application  of  this  principle  is  the 
following:  A  brakeman  injured  on  a  train  contain- 
ing nothing  but  intrastate  shipments  has  no  remedy 
under  the  federal  act  but  the  minute  that  any  specie 
of  merchandise  destined  to  a  point  beyond  the  state 
is  placed  in  that  train,  then  if  the  brakeman  on  that 
train  is  injured,  he  is  engaged  in  interstate  com- 

1.  First  Employers'  Liability  Cases,  207  U.  S.  463,  52  L.  Ed.  297, 
in  which  the  Supreme  Court  declared  the  Federal  Employers '  Ldability 
Act  of  1906  unconstitutional;  Second  Employers'  Liability  Cases,  223 
U.  S.  1,  56  L.  Ed.  327,  1  N.  C.  C.  A.  875,  38  L.  R.  A.  (N.  S.)  44, 
in  which  the  Federal  Employers'  Liability  Act  of  1908  was  held 
constitutional  and  valid. 

2.  Pederson  v.  Delaware,  L.  &  W.  R.  Co.,  229  U.  S.  146,  57  L.  Ed. 
1125,  6  N.  C.  C.  A.  198n,  924n,  reversing  same  case  ia  117  C.  C.  A.  33, 
197  Fed.  537,  which  affirmed  184  Fed.  737;  Michigan  C.  R.  Co.  v.  Vree- 
land,  227  U.  S.  59,  57  L.  Ed.  417,  3  N.  C.  C.  A.  807,  Ann.  Cas.  1914  C 
176n;  Fernetto  v.  Pere  Marquette  R.  Co.,  175  Mich.  653,  6  N.  C.  C.  A. 
231n. 


EMPLOYES    WITHIN    THE   ACT  69 

merce,  although  every  other  commodity  in  that  train 
is  a  shipment  between  two  points  in  the  same  state.^ 
§  28.  Train  Men  on  Interstate  Trains  are  Em- 
ployed in  Interstate  Commerce. — Engineers,  firemen, 
conductors,  brakemen,  flagmen  and  other  employes 
working  on  interstate  trains  are  employed  in  inter- 
state commerce  within  the  meaning  of  the  act.  A 
brakeman  killed  while  helping  to  move  an  interstate 
train,  was  held  to  be  engaged  in  interstate  com- 
merce.^ Employes  of  a  common  carrier  by  railroad 
on  a  train  transporting  freight  from  one  station  on 
a  railway  line  to  another  station  in  the  same  state 
where  the  freight  was  to  be  transported  by  other 
trains  to  another  state,  were  engaged  in  interstate 
commerce  within  the  meaning  of  the  federal  act.^ 
A  brakeman  employed  on  a  train  running  between 
two  terminals  in  the  same  state  which  contained  cars 
destined  for  points  in  other  states  and  injured  while 
uncoupling  two  cars,  was  engaged  in  interstate  com- 
merce.*^ A  fireman  on  an  engine  of  a  passenger 
train  running  from  Chicago  to  Milwaukee  and  in- 
jured in  Illinois  was  employed  in  interstate  com- 

3.  United  States  v.  Colorado  &  N.  W.  Ey.  Co.,  85  C.  C.  A.  27,  157 
Fed.  342,  15  L.  E.  A.  (N.  S.)  167n,  13  Ann.  Cas.  893.  Decedent  was 
brakeman  with  a  switching  crew  in  a  freight  yard.  He  was  killed 
while  switching  cars.  The  evidence  was  silent  as  to  whether  the  cars 
contained  interstate  shipments.  It  was  held  that  his  widow  suing  as 
administratrix  could  not  recover  under  the  Federal  Act.  Hench  v. 
Pennsylvania  R.  Co.,  —  Pa.  — ,  91  AtL  1056. 

4.  Vaughan  v.  St.  Louis  &  S.  F.  R.  Co.,  177  Mo.  App.  155,  6  N.  C. 
C.  A.  75n,  438n,  439n;  Hearst  v.  St.  Louis,  I.  M.  &  S.  Ey.  Co.,  —  Mo. 
App.  — ,  173  S.  W.  86. 

5.  United  States  v.  Chicago,  M.  &  P.  S.  Ey.  Co.,  197  Fed.  624. 

a  Nashvile,  C.  &  St.  L.  E.  Co.  v.  Banks,  156  Ky.  609,  6  N.  C.  C.  A. 
99n,  105n,  186n. 


70  INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

merce.'^  An  engineer  on  a  freight  train  running  from 
a  point  in  Missouri  to  another  place  in  Arkansas  and 
killed  while  enroute  was  held  to  have  been  employed 
in  interstate  commerce.*  Although  a  freight  train 
was  only  operated  between  two  terminals  in  the  same 
state,  yet  since  it  transported  freight  from  one  state 
to  another  and  to  a  foreign  country,  the  employes 
on  the  train  were  engaged  in  interstate  commerce.^ 
A  brakeman  on  a  passenger  train  running  from  a 
point  in  Kentucky  to  another  point  in  Ohio,  was 
held  to  be  engaged  in  interstate  commerce.^*^ 

§  29.  When  Trainmen  Are  Not  Engaged  in  Inter- 
state Commerce. — If,  at  the  time  of  the  accident,  the 
injured  employe  was  engaged  in  intrastate  com- 
merce, his  remedy  is  governed  exclusively  by  the 
laws  of  the  state  where  the  accident  occurred.  Train- 
men, such  as  engineers,  firemen,  flagmen,  baggage- 
men, brakemen,  porters  and  conductors,  are  not 
employed  in  interstate  commerce  when  they  are 
assisting  exclusively  in  the  movement  of  intrastate 
traffic.  For  instance,  when  they  are  employed  on  a 
train  containing  only  traffic  billed  between  two  points 
in  one  state,  the  line  between  the  two  points  being 
wholly  within  the  state,  they  are  engaged  in  intra- 
state commerce.  As  a  matter  of  fact,  however,  in 
the  practical  operation  of  railroads,  trains  running 

7.  Rowlands  v.  Chicago  &  N.  W.  Ey.  Co.,  149  Wis.  51. 

8.  St.  Louis,  I,  M.  &  S.  Ey.  Co.  v.  Conley,  110  C.  C.  A.  97,  1S7 
Fed.  949. 

9.  Northern  P.  Ey.  Co.  v,  Washington,  222  U.  S.  370,  56  L.  Ed.  237, 
reversing  same  ease  reported  in  53  Wash.  673. 

10.  Cincinnati,  N.  O.  &  T.  P.  Ey.  Co.  v.  Goode,  155  Ky.  153,  6  N.  C, 
C.  A.  81n,  544n;  s.  c,  153  Ky.  247. 


EMPLOYES   WITHIN    THE   ACT  71 

between  two  terminals,  containing  only  intrastate 
commerce,  that  is,  traffic  originating  in  and  being 
destined  to  a  point  in  the  same  state,  are  seldom 
operated  as  the  examination  of  conductors'  wheel 
reports  will  disclose,  and,  as  a  rule,  every  train 
carries  interstate  freight.  If  a  train  has  a  single 
shipment  of  interstate  freight,  then  all  the  employes 
working  on  that  train  are  engaged  in  interstate 
commerce. 

Notwithstanding  trains  as  a  rule  carry  interstate 
commerce,  cases  have  been  passed  upon,  in  which 
the  courts  have  held,  and  properly  so,  that  the 
employe's  remedy  was  governed  exclusively  by  the 
state  law,  because  of  the  fact  that  the  train  on  which 
he  was  working  contained  only  intrastate  ship- 
ments.^^ For  instance,  a  switching  crew  for  a  rail- 
road company  worked  sometimes  during  the  day  in 
transporting  interstate  shipments  and  at  other  times 
in  hauling  intrastate  freight.     The  plaintiff  was  a 

11.  Southern  Ey.  Co.  v.  Murphy,  9  Ga.  App.  190,  3  N.  C.  C.  A.  791n; 
Louisville  &  N.  R.  Co.  v.  Strange 's  Adni 'x,  156  Ky.  439,  6  N.  C.  C.  A. 
75n,  82n,  83n,  185n;  Illinois  C.  E.  Co.  v.  Behrens,  233  U.  &'.  473,  58 
L.  Ed.  1051,  6  N.  C.  C.  A.  189n,  Ann.  Cas.  1914  C  163n;  Wright  v. 
Chicago,  E.  I.  &  P.  R.  Co.,  94  Neb.  317,  6  N.  C.  C.  A.  183n,  A  freight 
conductor  was  injured  while  operating  a  train  between  two  points  in 
the  same  state,  which  consisted  solely  of  an  engine  and  the  way  car. 
The  train  crew  of  which  this  conductor  was  a  member,  was  not  re- 
turning from  a  trip  after  hauling  empty  or  loaded  cars  between  the 
states,  but  was  returning  without  transporting  any  commerce  from  one 
state  to  another.  Under  these  facts  the  court  said :  ' '  They  were 
carrying  instrumentalities  which  had  been  and  probably  would  be  used 
in  the  future  for  interstate  and  intrastate  transportation  cembined, 
or  only  for  intrastate  purposes,  or  perchance  for  interstate  commerce 
only.  I  cannot  find  that  it  has  been  decided  that  such  act  constitutes 
interstate  commerce,  but  it  has  been  in  principle  decided  that  it  does 
not."    McAuliffe  v.  New  York,  C.  &  H.  E.  Co.,  150  N.  Y.  Sup.  512. 


72  INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

member  of  this  switching  crew  working  on  a  short 
line  terminating  at  a  smelting  works.  This  crew 
made  three  or  four  trips  a  day  out  to  the  main  line 
hauling  cars  containing  both  intrastate  and  inter- 
state shipments.  At  other  times  while  on  duty  they 
were  engaged  in  switching  the  coal  and  coke  cars 
from  what  were  known  as  the  "coke  tracks"  to  other 
points  nearby,  all  in  the  same  state.  The  plaintiff 
was  injured  while  employed  in  assisting  in  the 
transportation  of  the  intrastate  shipments,  and  the 
court  held  that  he  was  engaged  solely  in  intrastate 
commerce  at  the  time  and  that  his  remedy  was 
governed  exclusively  by  the  laws  of  the  state  where 
the  casualty  occurred.^^  ^  switchman,  assisting  in 
the  movement  of  empty  passenger  cars  after  reach- 
ing a  terminal,  which  had  been  used  exclusively  in 
transporting  intrastate  passengers,  was  held  to  have 
been,  while  so  engaged,  not  employed  in  interstate 
commerce. ^^ 

§30.  Bridge  Workers  and  Carpenters  Employed 
in  Interstate  Commerce,  When. — If  a  railroad  track 
of  a  common  carrier  is  used  indiscriminately  for  the 
purpose  of  carrying  both  interstate  and  intrastate 
commerce,  then  bridge  workers  and  carpenters 
employed  on  such  lines  are  engaged  in  interstate 
commerce  within  the  meaning  of  the  federal  act. 


14 


12.  Southern  Ey.  Co.  v.  Murphy,  9  Ga.  App.  190,  3  N.  C.  C.  A.  791n. 

13»  Patry  v.  Chicago  &  W.  I.  R.  Co.,  —  lU.  — ,  106  N.  E.  843, 
reversing  same  case  reported  in  185  111.  App.  361. 

14.  Pederson  v.  Delaware,  L.  &  W.  R.  Co.,  229  U.  S.  146,  57  L.  Ed. 
1125,  6  N.  C.  C.  A.  198n,  924n,  Ann.  Cas.  194  O  153n,  reversing  same 
case  reported  in  184  Fed.  737  and  117  C.  C.  A.  33,  197  Fed.  537. 
(Lamar,  Holmes  and  Lurton,  J. J.,  dissenting.) 


EMPLOYES   WITHIN    THE   ACT  73 

The  Pederson  case,  cited  in  the  notes,  was  one  of 
the  first  and  leading  cases  before  the  Supreme  Court 
of  the  United  States  presenting  the  question  as  to 
when  a  railroad  employe  was  engaged  in  interstate 
commerce  by  virtue  of  his  employment  and  the  court 
held  than  an  iron  worker  employed  in  repairing  a 
bridge  on  a  railroad  track,  used  indiscriminately  for 
both  interstate  and  intrastate  commerce,  was  en- 
gaged in  interstate  commerce  while  he  was  carrying 
bolts  or  rivets  from  a  tool  car  to  a  bridge  although 
struck  by  a  train  carrying  exclusively  intrastate 
commerce.  When  struck,  the  plaintiff  was  not 
engaged  in  removing  the  old  girder  and  inserting 
the  new  one  but  was  merely  carrying  to  the  place 
some  of  the  materials  to  be  used  there.  These  facts 
were  presented  to  three  courts  and  three  different 
conclusions  of  law  were  drawn  from  them.  In  the 
final  decision  of  the  national  Supreme  Court,  Justices 
Lamar,  Holmes  and  Lurton  dissented.  The  federal 
circuit  court  in  which  the  case  was  tried  held  that 
an  injury  resulting  from  a  co-employe  engaged  in 
intrastate  commerce,  was  not  within  the  terms  of 
the  act.  The  federal  circuit  court  of  appeals  dis- 
approved the  ruling  of  the  lower  court  but  decided 
that  the  plaintiff  was  not  engaged  in  interstate 
commerce.  The  Supreme  Court  disapproved  both 
rulings  and  held  that  it  was  not  essential  where  the 
causal  negligence  was  that  of  a  co-employe  that  he 
must  also  be  employed  in  interstate  commerce  "for, 
if  the  other  conditions  be  present,  the  statute  gives 
a  right  of  recover}^  for  injury  or  death  resulting 
from  the  negligence  of  ^any  of  the     *     *     *     eni_ 


74  INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

ployes  of  sucli  carrier'  and  this  includes  an  employe 
engaged  in  intrastate  commerce."  On  this  feature 
all  the  judges  concurred. 

The  court  also  held  that  the  plaintiff  was  employed 
in  interstate  commerce,  because  the  work  of  keeping 
bridges  in  repair  is  so  closely  related  to  interstate 
commerce  as  to  be  in  practice  and  legal  contempla- 
tion a  part  of  it.  Tried  by  the  true  test,  is  the  work 
in  question  a  part  of  the  interstate  commerce  in 
which  the  carrier  is  engaged,  the  court  found  that 
bridges  on  interstate  railroads,  are  as  indispensable 
to  such  commerce  as  cars  and  engines,  and  that  the 
security  and  efficiency  of  such  commerce  requires 
such  bridges  to  be  kept  in  repair.  In  the  minority 
opinion,  Justice  Lamar  held  that  carrying  bolts  to 
be  used  in  repairing  such  a  bridge  was  not  a  part 
of  commerce  but  an  incident  which  precedes  it; 
that  such  an  act  was  not  commerce  in  any  sense  and 
that  the  Federal  Employers'  Liability  Act  applied 
to  those  engaged  in  transportation  and  not  to  those 
employed  in  building,  manufacturing  or  repairing. 

In  holding  that  the  plaintiff  was  engaged  in  inter- 
state commerce,  Mr.  Justice  Van  Devanter,  speaking 
for  the  court  in  the  majority  opinion,  said:  "That 
the  defendant  was  engaged  in  interstate  commerce 
is  conceded;  and  so  we  are  only  concerned  with  the 
nature  of  the  work  in  which  the  plaintiff  was  em- 
ployed at  the  time  of  his  injury.  Among  the  questions 
which  naturally  arise  in  this  connection  are  these: 
Was  that  work  being  done  independently  of  the 
interstate  commerce  in  which  the  defendant  was 
engaged,  or  was  it  so  closely  connected  therewith  as 


EMPLOYES    WITHIN    THE    ACT  75 

to  be  a  part  of  it?  Was  its  performance  a  matter 
of  indifference  so  far  as  that  commerce  was  con- 
cerned, or  was  it  in  the  nature  of  a  duty  resting  upon 
the  carrier?  The  answers  are  obvious.  Tracks  and 
bridges  are  as  indispensable  to  interstate  commerce 
by  railroad  as  are  engines  and  cars;  and  sound 
economic  reasons  unite  with  settled  rules  of  law  in 
demanding  that  all  of  these  instrumentalities  be  kept 
in  repair.  The  security,  expedition,  and  efficiency 
of  the  commerce  depends  in  large  measure  upon  this 
being  done.  Indeed,  the  statute  now  before  us  pro- 
ceeds upon  the  theory  that  the  carrier  is  charged 
with  the  duty  of  exercising  appropriate  care  to 
prevent  or  correct  'any  defect  or  insufficiency 
*  *  *  in  its  cars,  engines,  appliances,  machinery, 
track,  roadbed,  works,  boats,  wharves,  or  other 
equipment'  used  in  interstate  commerce.  But  inde- 
pendently of  the  statute,  we  are  of  opinion  that  the 
work  of  keeping  such  instrumentalities  in  a  proper 
state  of  repair  which  thus  used  is  so  closely  related 
to  such  commerce  as  to  be  in  practice  and  in  legal 
contemplation  a  part  of  it.  The  contention  to  the 
contrary  proceeds  upon  the  assumption  that  inter- 
state commerce  by  railroad  can  be  separated  into 
its  several  elements,  and  the  nature  of  each  deter- 
mined regardless  of  its  relation  to  others  or  the 
business  as  a  whole.  But  this  is  an  erroneous 
assumption.  The  true  test  always  is:  Is  the  work 
in  question  a  part  of  the  interstate  commerce  in 
which  the  carrier  is  engaged?  See  MoCall  v.  Cali- 
fornia, 136  U.  S.  104, 109,  111,  34  L.  Ed.  391,  392,  393, 
3  Inters.  Com.  Rep.  181, 10  Sup.  Ct.  Rep.  881;  Second 


76  INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

Employers'  Liability  Cases  (Mondou  v.  New  York, 
N.  H.  &  H.  R.  Co.),  223  U.  S.  6,  59,  56  L.  Ed.  329, 
350  (1  N.  C.  C.  A.  875),  38  L.  R.  A.  (N.  S.)  44,  32  Sup. 
Ct.  Rep.  169;  Zikos  v.  Oregon  R.  &  Nav.  Co.,  179  Fed. 
893,  897,  898  (3  N.  C.  C.  A.  783n,  784) ;  Central  R.  Co. 
V.  Colasurdo,  113  C.  C.  A.  379,  192  Fed.  901  (4  N.  C. 
C.  A.  645n) ;  Darr  v.  Baltimore  &  0.  R.  Co.,  197  Fed. 
665;  Northern  P.  R.  Co.  v.  Maerkl,  ll7  C.  C.  A.  237, 
198  Fed.  1.  Of  course,  we  are  not  here  concerned 
with  the  construction  of  tracks,  bridges,  engines,  or 
cars  which  have  not  as  yet  become  instrumentalities 
in  such  commerce,  but  only  with  the  work  of  main- 
taining them  in  proper  condition  after  they  have 
becom.e  such  instrumentalities  and  during  their  use 
as  such.  True,  a  track  or  bridge  may  be  used  in 
both  interstate  and  intrastate  commerce,  but  when 
it  is  so  used  it  is  none  the  less  an  instrumentality  of 
the  former;  nor  does  its  double  use  prevent  the 
employment  of  those  who  are  engaged  in  its  repair 
or  in  keeping  it  in  suitable  condition  for  use  from 
being  an  employment  in  interstate  commerce.  The 
point  is  made  that  the  plaintiff  was  not,  at  the  time 
of  his  injury,  engaged  in  removing  the  old  girder 
and  inserting  the  new  one,  but  was  merely  carrying 
to  the  place  where  that  work  was  to  be  used  therein. 
We  think  there  is  no  merit  in  this.  It  was  necessary 
to  the  repair  of  the  bridge  that  the  materials  be  at 
hand,  and  the  act  of  taking  them  there  was  a  part 
of  that  work.  In  other  words,  it  was  a  minor  task 
which  was  essentially  a  part  of  the  larger  one,  as  is 
the  case  when  an  engineer  takes  his  engine  from  the 
roundhouse  to  the  track  on  which  are  the  cars  he  is 


EMPLOYES   WITHIN   THE  ACT  77 

to  haul  in  interstate  commerce.  See  Lamphere  v. 
Oregon  R.  &  Nav.  Co.,  116  C.  C.  A.  156,  196  Fed.  336 
(6  N.  C.  C.  A.  187n,  47  L.  R.  A.  [N.  S.]  In) ;  Horton 
V.  Oregon- Washington  R.  &  Nav.  Co.,  72  Wash.  503 
(3  N.  C.  C.  A.  784),  130  Pac.  897  (47  L.  R.  A.  [N.  S.] 
8n) ;  Johnson  v.  Southern  P.  Co.,  196  U.  S.  1,  21,  49 
L.  Ed.  363,  371  (3  N.  C.  C.  A.  784,  802n,  829n),  25 
Sup.  Ct.  Rep.  158." 

§  31.  When  Car  Repairers  and  Roundhouse  Em- 
ployes Are  Engaged  in  Interstate  Commerce. — 
Employes  of  common  carriers  by  railroad  repairing 
engines  or  cars  used  indiscriminately  in  both  inter- 
state and  intrastate  commerce  as  occasion  requires, 
are  employed  in  interstate  commerce  so  that  their 
rights  in  the  event  of  injuries  or  the  rights  of  their 
beneficiaries  in  cases  of  death  are  controlled  exclu- 
sively by  the  Federal  Act.^^ 

In  the  Maerkl  case,  cited  in  the  notes,  the  decedent 
was  a  car  repairer  and  at  the  time  of  his  death  was 
repairing  a  box  car.  This  car  had  been  used  for  a 
long  time  in  both  interstate  and  intrastate  commerce 
as  occasion  might  arise,  and  was,  at  the  time  of  the 
injury  sustained  by  decedent,  which  subsequently 
caused  his  death,  being  repaired  in  a  railroad  ter- 
minal yard.  It  was  held  that  the  decedent  was 
engaged  in  interstate  commerce.  In  so  holding,  the 
court  said:  "It  appeared  from  the  evidence  that 
the  place  where  the  repairing  was  done  was  on  the 
main    line    of    the    defendant    company,    between 

15.  Northern  P.  Ey.  Co.  v.  Maerkl,  117  C.  C.  A.  237,  198  Fed.  I. 
This  case  was  cited  with  approval  by  the  Supreme  Court  in  Pederson 
V.  Delaware,  L.  &  W.  R.  Co.,  229  U.  S.  152,  57  L.  Ed.  1225,  6  N.  C. 
C.  A.  198n,  924u,  Ann.  Cas.  1914  C  153n. 


78  INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

Tacoma,  Washington  and  Portland,  Oregon,  and  was 
connected  with  it  by  switches  over  which  the  cars 
needing  repairs  were  run,  and  over  which,  after 
repairing,  they  were  again  put  into  the  service  of  the 
company  for  use  in  interstate  and  intrastate  com- 
merce, as  occasion  required,  and  the  parties  are 
agreed  that  this  particular  car  upon  which  the  de- 
ceased was  at  work  when  injured  had  been  for  a 
long  time  indiscriminately  used  in  interstate  and 
intrastate  commerce  and  was  to  be  again  so  used 
when  repaired.  That  a  car  was  used  as  one  of  the 
instruments  of  interstate  commerce  does  not  admit 
of  doubt." 

In  another  case  the  employe  was  also  a  car  re- 
pairer. He  was  ordered  to  repair  the  tender  of  an 
engine  which  had  brought  in  a  freight  train  from 
another  point  in  the  same  state  but  during  the  course 
of  the  transportation  crossed  into  another  state  and 
then  back  into  the  state  where  the  transportation 
originated.  The  plaintiff,  at  the  time  of  his  injury, 
was  repairing  the  engine  while  it  was  on  a  *'fire 
track"  on  which  temporary  repairs  were  usually 
made.  After  the  completion  of  the  repairs  the  engine 
was  to  be  used  in  hauling  another  train  over  the 
same  track  over  which  it  came.  The  engine  had  been 
habitually  used  in  interstate  commerce.  Under  these 
facts  the  court  held  that  the  plaintiff  was  employed 
for  the  defendant  in  interstate  commerce. ^^  A 
boiler  maker's  helper  working  in  a  machine  shop 
of  a  railroad  company  was  injured  while  repairing 

16.  Baltimore  &  O.  By.  Co.  v.  Darr,  124  C.  C.  A.  565,  204  Fed.  751, 
6  N.  C.  C.  A.  203n,  affirming  same  case  reported  in  197  Fed.  665. 


EMPLOYES   WITHIN   THE   ACT  79 

the  "petticoat"  of  a  freight  engine  regularly  used 
by  the  defendant  in  interstate  commerce.  The  engine 
was  in  the  shop  for  what  is  called  "roundhouse 
overhauling."  It  had  been  dismantled  at  least  21 
days  before  the  accident.  Up  to  the  time  it  was 
taken  to  the  shop  it  was  actually  in  use  in  interstate 
commerce.  It  was  destined  for  return  thereto  upon 
the  completion  of  the  repairs  and  actually  was  so 
returned  the  day  following  the  accident.  The  court 
held  that  the  engine  did  not  lose  its  interstate  char- 
acter from  the  mere  fact  that  it  was  not  at  the  time 
actually  engaged  in  interstate  commerce  and  that 
therefore  the  plaintiff  was  employed  in  interstate 
commerce  within  the  purview  of  the  federal  act.^^ 
In  another  case  the  plaintiff  was  a  car  repairer 
and  was  at  work  in  the  yards  on  a  switching  track. 
He  went  between  two  cars  to  fix  the  couplers  when 
the  two  cars  came  together  by  being  "kicked" 
through  other  cars  sent  on  that  track.  The  car  hav- 
ing the  defective  coupler  belonged  to  another  rail- 
road company.  It  had  been  brought  to  the  place  of 
the  accident  from  another  state  delivered  to  the 
defendant  loaded  with  coal  and  by  the  defendant 
delivered  to  the  consignee.  The  car  had  then  been 
unloaded  and  placed  upon  the  track  on  which  it  was 
when  the  plaintiff  was  injured  for  the  purpose  of 
being  redelivered  to  another  railroad  at  the  time 
the  car  was  empty.  Under  these  facts  the  court  held 
that  the  plaintiff  was  engaged  in  interstate  com- 

17.  Law  V.  Illinois  C.  E.  Co.,   126  C.  C.  A,  27,  208  Fed.  869,  6 
N.  C.  C.  A.  103n,  201n. 


80  INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

merce.^^  A  car  repairer  replacing  a  drawbar  on  a 
car  used  in  transporting  interstate  commerce,  was 
held  to  be  engaged  in  interstate  commerce  and  that 
his  remedy  under  the  federal  act  was  exclusive. ^-^ 
A  roundhouse  employe  while  repairing  an  engine 
used  in  hauling  both  interstate  and  intrastate  freight, 
was  held  to  be  engaged  in  interstate  commerce.-'^ 

§  32.  When  Car  and  Engine  Repairers  Are  Not 
Engaged  in  Interstate  Commerce. — If  cars  or  engines 
upon  which  repairs  are  being  made  by  railroad  em- 
ployes are  used  exclusively  in  intrastate  commerce, 
the  remedy  of  such  employes  injured  while  engaging 
in  such  work  is  determined  exclusively  by  the  laws 
of  the  state  where  the  accident  happened.  A  car 
repairer  in  the  employ  of  a  railroad  company  was 
killed  while  repairing  a  car  that  was  transported 
from  New  Jersey  to  Pennsylvania  carrying  inter- 
state commerce.  The  car  had  reached  its  destination 
and  it  was  empty.  Upon  the  end  of  the  journey  it 
was  put  on  a  side  track  for  repairs.  So  far  as  the 
evidence  appeared  the  car  was  in  Pennsylvania 
awaiting  orders  and  not  long  afterwards  it  was 
moved  to  another  point  in  Pennsylvania  beyond 

18.  Johnson  v.  Great  Northern  E.  Co.,  102  C.  C.  A.  89,  178  Fed. 
643,  1  N.  C.  C.  A.  853n,  861n. 

19.  Walsh  V.  New  York,  N.  H.  &  H.  K.  Co.,  one  of  the  Second 
Employers'  Liability  Cases,  reported  in  223  U.  S.  5,  56  L,  Ed.  327, 
1  N.  C.  C.  A.  875,  38  L.  E.  A.  (N.  S.)  44;  accord,  Gaines  v.  Detroit, 
G.  H.  &  M.  Ey.  Co.,  —  Mich.  — ,  6  N.  C.  C.  A.  202n,  148  N.  W.  397; 
St.  Louis  &  S.  F.  Ey.  Co.  v.  Conarty,  106  Ark.  421,  6  N.  C.  C.  A.  202n, 
447n;  Missouri,  K.  &  T.  Ey.  Co.  v.  Denahy,  —  Tex.  — ,  6  N.  C.  C.  A., 
202,  165  S.  W.  529. 

20.  Winters  v.  Minneapolis  &  &t.  Louis  E.  Co., .—  Minn.  — ,  6  N,  C. 
C.  A.  78n,  201n,  148  N.  W.  106. 


EMPLOYES   WITHIN   THE   ACT  81 

which  it  was  not  traced.  Decedent  was  killed  while 
repairing  this  car.  It  was  held  that  the  administrator 
could  not  recover  under  the  federal  act.^^  In  another 
case  a  carpenter  was  repairing  a  freight  car.  No 
facts  appeared  as  to  whether  the  car  was  used  indis- 
criminately in  transporting  interstate  and  intrastate 
commerce.  Nothing  was  shown  as  to  either  the  prior 
or  subsequent  use  of  the  car.  It  was  held  that  the 
plaintiff  could  not  recover  under  the  federal  act.^^ 
The  decision  in  the  last  case  was  probably  correct  as, 
in  the  absence  of  evidence  to  the  contrary,  the  car 
repairer  was  presumed  to  have  been  engaged  in 
intrastate  commerce.^^ 

A  roundhouse  employe  working  on  an  engine  in 
the  roundhouse  which  had  just  returned  from  an 
intrastate  journey  was  held  not  engaged  in  inter- 
state commerce.^^  Under  the  facts  in  this  case  the 
decision  was  incorrect  as  the  engine  was  used  indis- 
criminately in  hauling  both  kinds  of  commerce  and 
the  language  of  the  court  in  determining  when  car 
repairers  are  engaged  in  interstate  commerce  does 

21.  Heimbach  v.  Lehigh  V.  R.  Co.,  197  Fed.  579.  This  decision  was 
rendered  before  the  decision  of  the  United  States  Supreme  Court  in 
the  Pederson  case,  229  U.  S.  146,  57  L.  Ed.  1125,  6  N.  C.  C.  A.  198n, 
924n,  Ann.  Cas.  1914  C  153n,  and  the  court  announced  in  deciding  the 
case  that  it  was  following  the  decision  of  the  Federal  Circuit  Court  of 
Appeals  in  the  Pederson  case,  117  C.  C.  A.  33,  197  Fed.  537,  which 
was  later  reversed. 

22.  Louisville  &  N.  E.  Co.  v.  Moore,  156  Ky.  708,  4  N.  C.  C.  A. 
227n,  5  N,  C.  C.  A.  771n. 

23.  Erie  E.  Co.  v.  Welsh,  —  Ohio  — ,  6  N.  C.  C.  A.  77n,  188n,  105 
N.  E.  190;  Bradbury  v.  Chicago,  E.  I.  &  P.  Ey.  Co.  149  Iowa  51  j 
Chicago,  E.  I.  &  P.  Ey.  Co.  v.  McBee,  —  Okla.  — ,  145  Pae.  331. 

24.  LaCasse  v.  New  Orleans,  T.  &  M.  E.  Co.,  —  La.  — ,  6  N.  C.  C.  A. 
196n,  437n,  64  So.  1012. 

Roberts  Liabilities — 6 


82  INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

not  state  the  proper  rule.  It  is  generally  held  that 
car  repairers  on  engines  or  cars  used  indiscriminately 
in  both  kinds  of  commerce  are  engaged  in  interstate 
commerce;  but  the  court  in  this  case  used  the  fol- 
lowing language:  ''We  do  not  understand  this 
evidence  to  mean  any  more  than  this  locomotive, 
like  any  other  locomotive  of  the  defendant  company, 
or  any  of  its  cars,  might  be  and  was  sometimes  used 
in  interstate  commerce.  Not  that  it  was  being  so 
used  at  the  time  the  decedent  was  attending  to  it. 
On  the  contrary  the  evidence  shows  that  its  last  run, 
which  was  on  the  preceding  day,  had  been  from 
another  intrastate  point  to  Eunice.  If  the  fact  that 
a  locomotive  or  a  car  might  be  used  the  next  day,  or 
whenever  next  needed,  in  interstate  commerce,  was 
equivalent  to  being  actually  at  the  time  in  use  in 
that  commerce,  the  effect  would  be  that  whenever  a 
railroad  did  not  confine  itself  to  intrastate  com- 
merce, but  engaged  also  in  interstate  commerce, 
every  one  of  its  employes  would  at  all  times  be 
engaged  in  interstate  commerce  when  at  their 
work. ' ' 

In  another  action  against  a  railroad  company  the 
plaintiff  was  a  boiler  maker  working  in  the  shops 
of  a  railroad  company  when  injured.  He  was  en- 
gaged in  repairing  a  boiler  of  an  engine  used  in 
operating  a  derrick  on  a  flat  car  while  it  lay  on  the 
ground  near  the  roundhouse.  This  derrick  was  a 
part  of  a  wrecking  train  which  was  subject  to  orders 
and  was  used  mostly  in  the  state  of  Illinois  and  in 
other  states  when  needed,  depending  upon  the  place 
of  the  disaster.     The  wrecking  train  consisted  of  a 


EMPLOYES    WITHIN    THE   ACT  83 

locomotive,  one  or  more  flat  cars,  this  derrick  car 
and  a  bnnk  car.  The  employes  on  the  wrecking 
train  slept  in  the  bunk  car  and  remained  there 
frequently  for  three  or  four  days  at  a  time.  The 
court  held  that  the  plaintiff  was  not  engaged  in 
interstate  commerce.^'* 

§  33.  Test  in  Determining  When  Switching  Crews 
Are  Engaged  in  Interstate  Commerce. — The  sole  test 
in  determining  whether  switching  crews  employed 
in  railroad  yards  are  engaged  in  interstate  commerce 
is  whether  at  the  very  moment  of  the  accident  they 
are  assisting  in  moving  interstate  trains,  that  is,  cars 
either  loaded  or  empty,  originating  in  one  state  and 
destined  to  a  point  in  another  state,  territory  or 
foreign  country.^*^    In  the  Behrens  case  cited  in  the 

25.  Euek  v.  Chicago,  M.  &  &t.  P.  Ry.  Co.,  153  Wis.  158,  6  N.  C.  C.  A. 
204n.     See  §  47,  infra. 

26.  Illinois  C.  E.  Co.  v.  Behrens,  23.3  U.  S.  473,  58  L.  Ed.  1051, 
6  N.  C.  C.  A.  189n,  Ann.  Cas.  1914  C  163n,  reversing  same  case  reported 
in  192  Fed.  581.  A  switchman,  on  his  way  to  work,  was  killed  while 
crossing  a  railroad  track  in  a  terminal  yard.  He  was  regularly  em- 
ployed as  a  member  of  a  switching  crew.  The  evidence  disclosed  that 
the  switch  engine  used  by  this  switching  crew  was  used  indiscrimi- 
nately in  moving  both  interstate  and  intrastate  commerce.  But  as 
there  was  no  evidence,  at  the  time  he  was  killed,  the  decedent  was 
engaged  in  interstate  commerce  or  would  assist  in  the  switching  of 
interstate  cars  when  he  commenced  his  work,  it  was  held  by  the  court 
that  there  could  be  no  recovery  under  the  Federal  Employers '  Liability 
Act.  Knowles  v.  New  York,  N.  H.  &  H.  E.  Co.,  150  N.  Y.  Supp.  99. 
On  the  other  hand,  a  switchman  who  had  been  engaged  in  assisting 
the  movement  of  interstate  cars  in  a  terminal,  was  at  the  time  he 
was  struck  by  a  freight  train,  engaged  in  setting  switches  so  that  the 
switch  engine  could  pass  from  a  side  track  to  the  main  line.  In 
deciding  that  this  switchman  was  engaged  in  interstate  commerce  the 
Federal  Circuit  Court  of  Appeals  for  the  Sixth  District,  said :  * '  Did 
the  proof  sufficiently  tend  to  show  that  Morf  ord  was  engaged  in  inter- 
state commerce?  At  the  moment,  the  switch  engine  was  not  hauling 
any  cars,  and  so  the  true  character  of  the  employment  can  be  deter- 


84  INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

notes  a  fireman  on  a  switch  engine  was  killed.  The 
switching  crew,  of  which  he  was  a  member,  had  been 
engaged  in  moving  interstate  commerce  a  short  while 
before  he  was  killed  and  the  crew  intended  within 
a  short  time  to  again  resume  the  work  of  moving 
cars  loaded  with  interstate  freight.  But  at  the  time 
of  the  accident  the  switching  crew,  including  the 
fireman,  was  employed  in  moving  a  train  of  empties 
from  one  point  in  New  Orleans  to  another,  all  the 
cars  in  the  ''drag"  having  originated  and  being 
destined  to  points  within  the  same  state.  Under 
these  facts  the  United  Statets  Supreme  Court  held 

mined  only  by  a  broader  view.  The  evidence  showed  that  the  railway 
company,  in  and  about  these  yards,  was  continuously  and  indiscrimi- 
nately hauling  intrastate  and  interstate  freight,  and  that,  in  this  part 
of  the  work,  no  distinction  whatever  was  made  between  the  two 
classes.  Describing  the  work  of  this  train  crew,  the  yardmaster  's 
clerk  said  that  it  handled  both  intrastate  and  interstate  shipments, 
that  it  handled  all  classes  and  character  of  freight  and  all  kinds  of 
cars  during  its  working  hours,  and  that  it  did  the  work  of  transferring 
and  putting  into  other  trains  everything  that  came  in  for  transfer, 
making  no  difference  or  distinction.  When  it  was  sought  to  get  the 
cards  constituting  the  record  which  would  show  exactly  what  cars  had 
been  handled  that  night,  counsel  for  the  railroad  said:  'We  admit 
that  when  these  cars  come  in,  they  will  show  freight  of  every  character 
and  description,  intrastate  and  interstate — both  kinds. '  In  answer  to 
the  statement  by  plaintiff 's  counsel  that  he  wished  '  to  show  further 
that  this  character  of  interstate  freight  came  in  there  and  was  handled 
by  this  train  (crew)  that  night,'  counsel  for  the  railroad  company 
admitted  that  at  some  time  during  that  night  this  particular  decedent 
had  handled  both  intrastate  and  interstate  freight,  and  that  other 
freight  of  both  kinds  was  coming  in  and  going  out  of  those  yards, 
and  that  all  the  tracks  down  there  were  used  for  the  handling  of 
both.  Upon  this  stipulation  of  fact,  the  trial  proceeded.  The  cir- 
cumstances here  are  not,  in  all  respects,  the  same  as  those  found  con- 
trolling in  the  Pedersen  Case,  229  U.  S.  146,  33  Sup.  Ct.  648,  57  L.  Ed. 
1125,  Ann.  Cas.  1914  C  153,  or  the  Seale  Case,  229  U.  S.  156,  33  Sup, 
Ct.  651,  57  L.  Ed.  1129,  Ann.  Cas.  1914  C  156.  They  may  also  be 
distinguished,  though  we  think  not  effectively,  from  the  facts  in  the 


EMPLOYES    WITHIN    THE   ACT  85 

that  the  fireman  while  so  engaged  and  killed  by  the 
negligence  of  a  co-employe  was  not  engaged  in  inter- 
state commerce  within  the  meaning  of  the  act.  This 
was  the  first  case  reaching  that  court  under  the 
Employers'  Liability  Act  in  1908  in  which  it  was 
held  that  the  employe  was  not  engaged  in  interstate 
commerce  at  the  time  of  the  accident.  The  reason, 
as  given  by  the  court,  for  so  holding  was  that  since 
the  act  provides  that  the  servant,  in  order  to  recover, 
must  be  injured  "while  he  is  employed  by  such 
carrier  in  such  commerce"  and  since  the  switching 
crew  at  the  time  was  only  moving  intrastate  cars, 
the  fireman  while  so  working  was  not  within  the 

Zaehery  Case,  232  U.  S.  248,  34  Sup.  Ct.  305,  58  L.  Ed.  591,  Ann.  Gas. 
1914  C  159;  because,  in  the  latter  case,  it  definitely  appeared  that  the 
engine  was  about  to  be  used,  or  was  being  prepared  for  use,  in  dis- 
tinctively interstate  commerce.  The  same  difference  and  possible  dis- 
tinction exists  with  reference  to  Law  v.  Illinois  Central  (C.  C.  A.  6), 
208  Fed.  869,  126  C.  C.  A.  27.  However,  we  can  draw  no  inference 
from  these  and  other  familiar  decisions  of  the  Supreme  Court  (in- 
cluding the  Behrens  Case,  233  U.  S.  473,  477,  34  Sup.  Ct.  646,  58  L. 
Ed.  1051,  Ann.  Cas.  1914  C  163),  and  the  way  in  which  they  have 
interpreted  the  statute,  save  that  liability  is  created  where  the  service 
being  rendered  is  of  a  general,  indiscriminate  character,  not  segre- 
gated and  tied  to  shipments  within  the  state  (as  in  the  Behrens  Case, 
supra,  233  U.  S.  478,  34  Sup.  Ct.  646,  58  L.  Ed.  1051,  Ann.  Cas.  1914  C 
163),  but  applicable  at  least  as  well  to  the  interstate  commerce  which 
the  carrier  is  conducting.  While  it  may  not  be  easy  in  some  cases  to 
draw  the  line  between  the  results  of  this  view  and  a  breadth  of  con- 
struction which  would  make  the  statute  invalid  under  the  Employers' 
Liability  Cases,  207  U.  S.  463,  28  Sup.  Ct.  141,  52  L.  Ed.  297,  yet  cases 
like  the  present  are  fairly  within  the  Hue  of  validity.  They  hardly 
go  beyond  fixing  the  burden  of  proof  and  declaring  that,  where  the 
facts  show  the  case  may  well  have  been  within  the  statute,  the  initial 
burden  is  satisfied,  and  it  is  for  the  defendant  to  show  the  contrary. 
It  follows  that  the  jury  in  this  case  had  a  right  to  find,  as  it  did, 
that  at  the  time  of  his  death  Morf ord  was  employed  in  interstate  com- 
merce. ' '  Pittsburgh,  C,  C.  &  St.  L.  Ry.  Co.  v.  Glinn,  —  C.  C.  A.  — , 
219  Fed.  148,  decided  January  5,  1915. 


86  INJURIES  TO  INTERSTATE  EMPLOYES  ON  R.yLROADS 

terms  of  the  act.  The  case  removed  a  doubt  and 
uncertainty  that  had  theretofore  existed  among  other 
courts  as  to  whether  trainmen  and  switching  cars 
engaged  sometimes  in  intrastate  and  sometimes  in 
interstate  commerce  came  within  the  provisions  of 
the  act.  The  court  said:  "Here,  at  the  time  of  the 
fatal  injury,  the  intestate  was  engaged  in  moving 
several  cars,  all  loaded  with  intrastate  freight  from 
one  point  of"  the  city  to  another.  That  was  not  serv- 
ice in  interstate  commerce  and  so  the  injury  and 
resulting  death  were  not  within  the  statute.  That 
he  was  expected,  upon  the  completion  of  that  task, 
to  engage  in  another  which  would  have  been  a  part 
of  interstate  commerce,  is  immaterial  under  the 
statute,  for  by  its  terms  the  true  test  is  the  nature 
of  the  work  being  done  at  the  time  of  the  injury. 
The  question  is  correctly  answered  in  the  negative. ' ' 
§  34.  Switching  Crews  Engaged  in  Interstate  Com- 
merce.— A  member  of  a  switching  crew  was  engaged 
at  the  time  he  was  injured  in  moving  oil  for  the  pur- 
pose of  providing  fuel  for  engines  used  in  transport- 
ing freight  and  passengers  from  California  to 
Oregon.  The  accident  occurred  in  Oregon  and  the 
car  containing  the  oil  had  been  brought  from  Cali- 
fornia. The  court  held  that  he  was  engaged  in 
interstate  commerce.^'  A  switchman  at  the  time  of 
his  death  employed  in  switching  cars  loaded  with 
merchandise  originating  in  one  state  and  destined  to 
a  point  in  another  state,  was  held  to  be  engaged  in 
interstate  commerce  within  the  meaning  of  the  fed- 

27.  Montgomery  v.  Southern  P.  By.  Co.,  64  Ore.  597,  47  L.  E.  A. 
(N.  S.)   13n. 


EMPLOYES   "WITHIN   THE   ACT  87 

eral  act.^^  A  brakeman  on  an  extra  freight  train 
while  ''breaking  up"  his  train  at  a  terminal  was 
assisting  in  switching  a  car  loaded  with  lumber  and 
consigned  to  a  point  in  another  state.  He  was 
engaged  in  interstate  commerce.^^  An  engineer  on 
a  switch  engine  engaged  in  delivering  cars  contain- 
ing coal  which  was  to  be  used  partly  by  locomotive 
engines  of  the  railroad  company  employed  in  hauling 
trains  containing  interstate  commerce  was  held  to 
have  a  remedy  under  the  federal  act.^°  A  petition 
in  an  action  under  the  federal  act  declared  that  the 
defendant  was  a  common  carrier  by  railroad  engaged 
in  interstate  commerce  and  had  a  freight  yard  in  a 
town  in  Florida;  that  the  decedent  was  an  employe 
of  the  defendant  in  said  yard  as  a  switchman;  that 
he  was  required,  in  the  discharge  of  his  duties  in  the 
movement  of  certain  cars,  to  uncouple  a  car  attached 
to  an  engine;  that  the  engine  was  kept  at  said  point 
to  switch  and  move  intrastate  and  interstate  cars 
as  circumstances  required.  It  was  held  by  a  majority 
of  the  court  that  this  declaration  sufficiently  alleged 
that  at  the  time  of  the  injury  the  decedent  and  the 
company  were  engaged  in  interstate  commerce. 
Under  the  later  ruling  of  the  United  States  Supreme 
Court  in  Illinois  C.  R.  Co.  v.  Behrens,  no  doubt  the 
decision  of  the  court  in  this  case  was  too  broad  for, 
if,  at  the  time  of  the  injury,  the  decedent  was  assist- 
ing in  the  movement  of  intrastate  cars  only,  his 

28.  Rich  V.  St.  Louis  &  S.  F.  R.  Co.,  166  Mo.  App.  379. 

29.  Nashville,  C.  &  S.  L.  E.  Co.  v.  Banks,  156  Ky.  609,  6  N.  C.  C.  A. 
99n,  lOon,  186n. 

30.  Barlow  v.  Lehigh  V.  E.  Co.,  158  App.  Div.  (N.  Y.)  768,  6  N.  C. 
C.  A.  191n. 


88  INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

administrator  would  not  have  a  remedy  under  tlie 
Federal  Act.^^  A  switchman  injured  while  riding 
on  a  car  in  transit  from  Indianapolis,  Ind.,  to  East 
St.  Louis,  m.,  and  which  was  being  switched  at  the 
time,  to  the  warehouse  at  the  point  of  delivery,  to 
be  unloaded,  was  engaged  in  interstate  commerce.^- 

§  35.  Switching'  Cars  Containing  Intrastate  Ship- 
ments Into  or  Out  of  Interstate  Trains — Conflicting 
Rulings. — Whether  an  employe  engaged  in  "setting 
out"  a  car  containing  intrastate  shipments  or  ''pick- 
ing up"  a  car  containing  such  shipments  from  or 
into,  as  the  case  may  be,  a  train  containing  interstate 
traffic  while  such  cars  are  detached  from  the  train, 
are  employed  in  interstate  commerce,  is  a  question 
which  has  given  the  courts  considerable  difficulty 
in  solving  and  has  resulted  in  conflicting  rulings. 
The  national  Supreme  Court  has  not  apparently 
passed  upon  this  phase  of  interstate  employment. 
In  the  Behrens  case  in  which  the  employe  was  de- 
clared to  be  employed  in  intrastate  commerce,  the 
switching  crew  was  engaged  in  moving  cars,  all  of 
which  originated  in  and  were  destined  to  points  in 
the  same  state  so  that  the  decision  does  not  reach 
the  question  here  presented.^^ 

With  the  decision  in  the  Behrens  case  before  it, 
the  Supreme  Court  of  Kansas,  in  a  case  which  was 
presented  by  able  lawyers,  decided  that  a  brakeman 
was  employed  in  interstate  commerce  while  doing 

31.  Atlantic  C.  L.  Co.  v.  Eeaves,  125  C.  C.  A.  599,  208  Fed.  141. 

32.  Hall  V.  Vandalia  E.  Co.,  169  lU.  App.  12. 

33.  Illinois  C.  E.  Co.  v.  Behrens,  233  U.  S.  473,  58  L.  Ed.  1051, 
6  N.  C.  C.  A.  189n,  Ann.  Cas.  1914  C  163n- 


EMPLOYES  WITHm   THE  ACT  89 

such  work.3^    In  that  case  a  brakeman  on  an  inter- 
state train  was  required  to  assist  in  ''picking  up" 
a  car  standing  on  the  siding  and  consigned  to  another 
point  in  the  same  state.    This  car,  while  so  standing 
on  the  siding,  was  coupled  to  another  car.     The 
engine  of  the  train  was  uncoupled  from  the  train 
and  moved  to  the  siding  and  there  attached  to  the 
two  cars  which  were  then  pulled  out  from  the  siding 
upon  the  main  line  in  order  to  place  the  car  which 
was  to  be  transported,  in  the  train.    After  reaching 
the  main  line,  and  while  the  two  cars  were  coupled 
up  to  the  engine  and  detached  from  the  train,  the 
brakeman    stepped   between   the   two  cars   to   un- 
couple the  one  that  was  to  be  taken  from  the  other 
which  was  not  to  be  taken.    Owing  to  a  defective 
coupler  he  was  killed.     The  defective  coupler  was 
on  the  car  which  was  to  be  taken  into  the  train. 
Nothing  appeared  in  the  record  as  to  the  destination 
of  the  other  car  on  the  siding,  except  that  the  crew 
was  to  replace  it  on  the  siding  where  they  found  it. 
It  was  moved  to  the  main  line  simply  because  it 
stood  between  the  engine  and  car  which  was  to  be 
taken  into  the  train.    Under  these  facts  the  court 
held  that  the  brakeman  was  engaged  in  interstate 
commerce  notwithstanding  the  fact  that  the  car,  the 
movement  of  which  he  was  assisting  at  the  time  of 
his  death,  contained  only  intrastate  traffic  and  had 
not  become  a  part  of  or  attached  to  the  train. 

In  another  case  a  brakeman  was  employed  on  a 

34,  Thornbro  v.  Kansas  City,  M.  &  O.  Ey.  Co.,  91  Kan.  684;  139 
Pac.  1199,  aflBjmed  on  rehearing,  92  Kan.  681. 


90  INJTIEIES  TO  mTERSTATE  EMPLOYES  ON  RAILROADS 

train  consisting  partly  of  cars  destined  to  points  out- 
side of  the  state.^^  The  train  was  running  between 
two  points  in  Texas.  At  Etholine,  Texas,  a  station 
on  the  line  between  the  two  terminals,  a  car  loaded 
with  merchandise  originating  at  Dallas,  Texas,  was 
' '  set  out ' '  from  the  train  for  delivery  on  a  siding  at 
that  station  by  making  a  "flying  switch."  The 
brakeman,  while  this  car  containing  intrastate  traffic 
was  being  switched,  was  standing  on  top  of  it.  In 
performing  the  ' '  flying  switch, ' '  the  engine  and  sev- 
eral other  cars  in  the  train,  including  the  car  men- 
tioned on  which  the  plaintiff  was  standing,  were 
detached  from  the  train  on  the  main  line.  During 
the  performance  of  the  work  of  switching  this  car 
on  the  siding,  the  engineer  stopped  the  train  before 
the  car  which  was  to  be  ''set  out"  was  cut  loose 
from  the  other  cars  and  the  brakeman  was  jerked 
off,  fell  and  was  injured.  Under  those  conditions 
the  Federal  Circuit  Court  of  Appeals  held  that  the 
brakeman  was  not  engaged  in  interstate  commerce. 
The  only  difference  between  the  Thombro  and  the 
Van  Brimmer  cases  in  so  far  as  the  feature  under 
discussion  is  concerned  was  that  in  the  former  the 
employe  was  assisting  in  switching  an  intrastate  car 
into  an  interstate  train  and  in  the  latter  the  employe 
was  switching  an  intrastate  car  out  of  an  interstate 
train.  Of  course  this  difference  could  have  no  force 
in  the  application  of  the  principle  and  the  cases  are 
squarely  in  conflict.  In  the  Van  Brimmer  case  it 
appeared  that  some  of  the  cars  contained  interstate 

35.  Van  Brimmer  v.  Texas  &  P.  Ey.  Co.  (C,  C.  A.),  190  Fed,  394, 
6  N.  C.  C.  A.  7911. 


EMPLOYES   WITHIN   THE   ACT  91 

shipments  as  it  did  in  the  Thombro  case,  but  whether 
the  cars  which  were  attached  to  the  intrastate  car 
**set  out"  at  the  time  of  the  accident  contained 
interstate  shipments  does  not  appear  from  the  re- 
ported opinion  any  more  than  the  interstate  or 
intrastate  character  of  the  other  car  attached  to  the 
intrastate  car  in  the  Thornbro  case.  Of  course,  if  it 
appeared  that  the  other  car  attached  to  the  intrastate 
car  in  the  Thornbro  case,  at  the  moment  of  the 
accident  or  the  other  car  attached  to  the  intrastate 
car  in  the  Van  Brimmer  case,  contained  interstate 
commerce,  then  unquestionably  the  employe  was 
engaged  in  interstate  commerce  under  other  rulings 
of  the  national  Supreme  Court.  In  another  case  a 
brakeman  was  injured  through  the  negligence  of  a 
fellow  servant  while  on  a  sidetrack  setting  out  cars 
containing  only  intrastate  traffic,  although  the  train 
on  which  he  was  working  contained  interstate  ship- 
ments. It  was  held  that  his  work  on  the  sidetrack 
was  an  incident  to  the  operation  of  the  entire  train 
in  interstate  commerce.^*^  It  was  held  in  another 
case  that  a  fireman  engaged  in  switching  intrastate 
cars  to  be  put  in  a  train  composed  partly  of  cars 
containing  interstate  shipments,  was  employed  in 
interstate  commerce  so  that  his  remedy  under  the 
federal  act  was  exclusive.^' 

It  would  seem  on  principle  that  employes  engaged 

36.  Carr  v.  New  York,  etc.,  R,  Co.,  77  Misc.  (N.  Y.)  346.  The 
case  in  the  preceding  note  was  called  to  the  attention  of  the  court 
in  the  Carr  case,  but  the  court  held  it  to  be  in  conflict  with  other 
federal  decisions  and  refused  to  follow  it. 

37.  Southern  Ry.  Co.  v.  Jacobs,  —  Va.  — ,  6  N.  C.  C.  A.  94n,  186n, 
81  S.  E.  99. 


92  INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

in  picking  up  or  setting  out  intrastate  cars  at  sta- 
tions between  terminals  out  of  or  into  interstate 
trains,  are  engaged  in  interstate  commerce,  notwith- 
standing the  fact  that  the  car  is  detached  from  the 
train  and  on  a  siding  at  the  time  of  the  injury.  A 
train  employe  is  either  employed  in  interstate  com- 
merce or  intrastate  commerce.  He  cannot,  in  the 
sense  of  determining  liability  under  the  federal  act, 
be  employed  in  both  kinds  of  commerce  at  the  same 
time  so  as  to  have  a  choice  of  remedy.  Now  under 
the  conditions  described,  if  the  employe  is  engaged 
in  intrastate  commerce,  when  does  the  interstate 
character  of  his  employment  end?  Is  it  when  the 
car  while  still  standing  where  it  was  when  it  was  a 
part  of  the  interstate  train,  is  uncoupled?  Or  is  it 
when  it  has  left  the  main  line?  The  entire  act  of 
switching  intrastate  cars  from  the  time  of  the  un- 
coupling to  the  delivery  on  the  siding,  it  seems,  is 
so  much  a  part  of  the  work  in  the  movement  of  that 
interstate  train  and  so  directly  connected  with  that 
movement  that  the  employe  so  engaged,  should  be 
held  to  be  employed  in  interstate  commerce.  Indeed 
such  employes'  connection  with  interstate  com- 
merce while  even  on  the  siding,  is  as  direct  and 
immediate  as  the  work  of  employes  at  terminals  in 
preparing  interstate  trains  for  movement  or  in  mov- 
ing materials  or  instrumentalities  to  be  used  on 
interstate  trains,  or  yard  clerks  checking  incoming- 
trains  in  the  switching  yards  after  arrival  at 
terminals  and  after  the  train  employes  have  left  the 
yards.^^ 

38.  St  Louis  &  S.  F.  &  T.  E.  Co.  v.  Seale,  229  U.  S.  156,  57  L.  Ed. 


EMPLOYES   WITHIN   THE   ACT  93 

§  36.  Section  Men  and  Track  Laborers. — All  sec- 
tion men  and  track  laborers  while  working  on  or 
repairing  any  part  of  the  track  or  switches  used  by 
a  common  carrier  by  railroad,  indiscriminately,,  for 
both  interstate  and  intrastate  commerce,  are  em- 
ployed in  interstate  commerce  within  the  meaning 
of  the  national  statute.^^  For  instance,  a  section  man 
on  an  interstate  railroad  killed  while  sweeping  snow 
from  the  switches  at  a  station  between  terminals  was 
held  to  be  engaged  in  interstate  commerce.^*^  A 
member  of  a  track  gang  engaged  in  ballasting  a  rail- 
road track  used  in  transporting  freight  and  pas- 
sengers between  different  states  was  held  to  be 
employed  in  interstate  commerce  while  so  engaged.^ ^ 
A  section  hand  injured  while  placing  a  rail  in  a  side- 
track near  a  main  line  over  which  trains  carrying 
interstate  commerce  habitually  passed  was  held  to 
be  employed  in  interstate  commerce.'*^  A  track 
walker  at  the  time  he  was  struck  and  injured  by  an 
intrastate  train  was  repairing  a  switch  on  a  track 
used  for  both  intrastate  and  interstate  commerce  and 
he  was  held  to  have  a  remedy  under  the  federal  act.^^ 
A  section  man,  while  driving  spikes  on  a  railroad 

1129,  3  N.  C.  C.  A.  800,  Ann.  Gas.  1914  C  156n;  Neil  v.  Idaho  E.  Co., 
22  Idaho  74;  North  Carolina  E.  Co.  v.  Zachary,  232  U.  S.  248,  58  L. 
Ed.  591,  6  N.  C.  C.  A.  194n,  Ann.  Cas.  1914  C  159n. 

39.  Southern  Ey.  Co.  v.  Howerton,  —  Ind.  — ,  6  N.  C.  C.  A.  75n, 
82n,  101  N.  E.  121,  105  N.  E.  1025. 

40.  Hardwick  v.  Wabaah  E.  Co.,  —  Mo.  App.  — ,  168  S.  W.  328. 

41.  San  Pedro,  L.  A.  &  S.  L.  E.  Co.  v.  Davide,  127  C.  C.  A.  454, 
210  Fed.  870,  6  N.  C.  C.  A.  197n. 

42.  Jones  v.  Chesapeake  &  O.  Ey.  Co.,  149  Ky.  566. 

43.  Colasurdo  v.  Central  E.  Co.  of  New  Jersey,  180  Fed.  832; 
affirmed  113  C.  C.  A.  379,  192  Fed.  901. 


94  INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

track  on  wliich  the  railroad  company  transported 
interstate  commerce  was  declared  to  be  employed  in 
interstate  commerce.^*  A  section  foreman  of  a  rail- 
road company  operating  a  line  wMch  traversed  sev- 
eral states  and  injured  through  the  negligence  of 
trainmen  operating  a  train  hauling  interstate  com- 
merce, was  held  to  have  a  remedy  under  the  federal 
act.^^  A  railroad  employe  engaged  in  relaying  rails 
on  a  switch  track  near  a  station  on  a  main  line  and 
over  which  interstate  commerce  was  carried,  was 
held  to  have  a  remedy  under  the  federal  act.^*' 

§  37.  Employes  Preparing  or  Moving  Materials  or 
Instrumentalities  to  be  Used  on  Interstate  Trains. — 
Employes  of  a  railroad  company  engaged  in  the 
work  of  furnishing  coal,  water  or  oil  for  engines 
engaged  indiscriminately  in  pulling  interstate  and 
intrastate  freight  or  in  furnishing  materials,  such 
as  ice,  for  passenger  trains  hauling  any  interstate 
passengers,  are  engaged  in  interstate  commerce 
within  the  terms  and  conditions  of  the  federal  act. 

A  porter  on  a  passenger  train  when  injured  was 
lifting  cakes  of  ice  for  a  water  cooler  in  a  coach  of 
a  passenger  train.  The  passengers  on  the  train,  with 
the  exception  of  two  traveling  from  one  state  to 
another,  were  making  intrastate  trips.  The  court 
held  that  the  porter  was  employed  in  interstate 

M.  Zikos  V.  Oregon,  W.  E.  &  N.  Co.,  179  Fed.  893,  3  N.  C.  C.  A. 
783n,  784. 

45.  LouisviUe  &  N.  E.  Co.  v.  Kemp,  140  Ga.  657,  6  N.  C.  C.  A.  75n, 
196n,  overruling  in  effect  Charleston  &  W.  C.  E.  Co.  v.  Anchors,  10 
Ga.  329, 

46.  Trnesdell  v.  Chesapeake  &  O.  Ey.  Co.,  159  Ky.  718. 


EMPLOYES   WITHIN   THE  ACT  95 

commerce.^^  An  engineer  at  a  station  engaged  in 
pumping  water  to  be  used  by  engines  engaged  in 
pulling  either  intrastate  or  interstate  commerce,  as 
the  business  exigencies  of  the  defendant  required, 
was  declared  to  be  engaged  in  interstate  com- 
merce.'*® The  court  in  the  last  case,  answering  the 
contention  that  a  stationary  engineer  pumping  water 
was  not  engaged  in  interstate  commerce,  said:  "Was 
the  relation  of  his  employment  to  interstate  com- 
merce such  that  an  injury  to  him  tended  to  delay  or 
hinder  the  movement  of  trains  engaged  in  such 
commerce  ?  There  is  but  one  answer  to  the  question. 
Water  to  supply  the  engines  pulling  such  trains  had 
to  be  pumped  as  a  necessary  incident  to  the  move- 
ment of  trains.  If,  when  he  was  killed,  his  place  had 
not  been  supplied  by  another,  the  movement  of  trains 
engaged  in  interstate  commerce  conducted  by  the 
master  as  well  as  the  local  trains,  must  have  ceased 
altogether.  This  demonstrates  the  'real  or  sub- 
stantial' connection  of  his  employment  with  such 
commerce.  There  can  be  no  possible  distinction  in 
the  relation  to  interstate  commerce  between  the 
employment  of  the  fireman  who  stokes  the  engine ' 

47.  Freeman  v.  Powell,  —  Tex.  — ,  144  S.  W.  1033;  Powell  v. 
Freeman,  105  Tex.  817.  A  brakeman  was  injured  by  falling  into  a 
cinder  pit  while  he  was  walking  over  a  railroad  yard  looking  for  a 
tool  boy  to  get  a  tin  cup  for  the  way  car  of  an  interstate  train  on 
which  he  was  about  to  leave  the  terminal.  It  was  held  that  he  was 
engaged  in  interstate  commerce.  Baltimore  &  O.  E.  Co.  v.  Whitacre, 
—  Md.  — ,  92  Atl.  1060.  This  was  the  first  case  under  the  Federal 
Employers'  Liability  Act  before  the  Court  of  Appeals  of  Maryland. 

48.  Horton  v.  Oregon,  W.  E.  &  N.  Co.,  72  Wash.  503,  3  N,  C.  C.  A., 
784,  47  L.  E.  A.  (N.  &'.)  8n,  overruling  Tsmura  v.  Great  N.  Ey.  Co.,  58 
Wash.  316,  3  N.  C.  C.  A.  786n. 


96  INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

hauling  the  train  so  engaged,  and  that  of  the  man 
who  pumps  the  water  for  the  same  engine.  The 
engine  would  not  run  without  the  service  of  either. 
If  there  is  a  distinction,  it  is  too  fine-spun  and 
diaphanous  for  ordinary  perception.  To  hold  that 
there  is  any  material  distinction  would  be  as  unjust 
as  artificial.  The  pumper's  relation  to  actual  trans- 
portation of  interstate  freight  and  passengers  is 
much  more  direct  and  intimate  than  that  of  a  car 
repairer  or  repairer  of  an  engine  tender,  who  bestows 
his  labor  on  instrumentalities  while  they  are,  so  to 
speak,  temporarily  out  of  commission.  To  allow  a 
recovery  to  these,  and  not  to  the  pumper  supplying 
the  water  for  motive  power  in  actual  transportation 
would  smack  of  caprice." 

A  railroad  employe  assisting  in  the  movement  of 
water  and  coal  which  was  to  be  used  on  the  engines 
of  an  interstate  railroad  in  hauling  interstate  com- 
merce, was  held  to  have  a  remedy  under  the  federal 
act.^^  A  switchman  engaged  in  switching  coal  into 
coal  chutes  of  a  railroad  company  which  was  to  be 
used  on  engines  hauling  interstate  commerce  was 
employed  in  interstate  commerce.^*^  An  employe 
engaged  in  dumping  coal  from  a  coal  chute  into  the 
tender  of  an  engine  which  was  being  then  prepared 
for  the  purpose  of  taking  a  passenger  train  from  a 

49.  Barker  v.  Kansas  City,  M.  &  O.  Ey.  Co.,  88  Kan.  767,  43 
L.  R.  A.  (N.  S.)  1121;  contra,  Missouri,  K.  &  T.  Ey.  Co.  v.  Fesmire, 
—  Tex.  — ,  150  S.  W.  201.  Under  the  facts  presented  on  a  second 
appeal,  the  court  reached  a  different  conclusion  in  the  Barker  case. 
Barker  v.  Kansas  City,  M.  &  O.  Ey.  Co.,  —  Kan.  — ,  146  Pac.  358, 
decided  February  6,  1915.    See  §  171,  infra. 

50.  Barlow  v.  Lehigh  V.  E.  Co.,  158  App.  Div.  (N.  Y.)  768,  6.  N.  C. 
C.  A.  191n. 


EMPLOYES    WITHIN   THE   ACT  97 

terminal  in  one  state  to  a  point  in  another  state, 
was  engaged  in  interstate  commerce.^ ^  A  railroad 
employe  injured  while  loading  tobacco  on  a  car 
which  was  to  be  transported  into  another  state, 
was  held  to  have  a  remedy  under  the  federal  act." 
A  brakeman  carrying  ice  in  a  railroad  yard  to  cool 
a  hot  box  on  a  car  in  an  interstate  train  was  held  to 
be  within  the  protection  of  the  national  statute.^  ^ 
A  member  of  a  switching  crew  transferring  oil  from 
a  car  to  be  used  on  railroad  engines  hauling  inter- 
state trains  was  employed  in  interstate  commerce.^* 
An  engineer,  when  injured,  was  running  an  engine 
between  two  points  in  the  same  state  for  the  purpose 
of  ascertaining  whether  the  engine  was  in  proper 
condition  to  pull  an  interstate  train.  The  court 
decided  he  was  engaged  in  interstate  commerce.^^ 

§38.  Employes  Preparing  Interstate  Trains  for 
Movement. — Employes  of  a  railroad  company  while 
doing  any  act  within  the  scope  of  their  employment 
necessary  or  expedient  to  prepare  interstate  trains 
for  movement,  are  employed  in  interstate  commerce 
within  the  terms  of  the  federal  act.  A  fireman  on  a 
locomotive  engine,  inspecting,  oiling,  firing  and  pre- 
paring his  engine  for  an  interstate  trip,  was,  while 
so  engaged,  within  the  protection  of  the  national 

51.  Armbruster  v.  Chicago,  E.  I.  &  P.  Ey.  Co.,  —  Iowa  — ,  6  N.  C. 
C.  A.  195n,  147  N.  W.  337. 

52.  Illinois  C.  E.  Co..  v.  Porter,  207  Fed.  311,  6  N.  C.  C.  A.  98ii, 
205n. 

53.  Illinois  C.  E.  Co.  v.  Nelson,  122  C.  C.  A.  258,  203  Fed.  956. 

54.  Montgomery  v.  Southern  P.  E.  Co.,  64  Ore.  597,  47  L.  E.  A. 
(N.  S.)  13n. 

55.  Lloyd  v.  Southern  Ey.  Co.,  —  N.  C.  — ,  6  N.  C.  C.  A.  190n,  81 
S.  E.  1003. 

Roberts  Liabllitiea — 7 


98  INJDEIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

statute  altlioiigh  lie  liad  not  at  the  time  of  Ms  injury 
and  death  participated  in  assisting  in  the  movement 
of  any  interstate  freight  and  the  engine  had  not  been 
coupled  to  the  cars  of  the  train.^**  A  switchman  who 
stepped  upon  a  defective  footboard  of  a  switch 
engine  while  engaged  in  making  up  an  interstate 
train  was  held  to  be  within  the  terms  of  the  act.^'^ 
Applying  the  same  principle  no  doubt  the  courts 
will  hold  when  such  facts  present  themselves  for 
adjudication  that  car  inspectors  looking  over  and 
inspecting  cars  in  interstate  trains,  if  injured  while 
so  employed,  are  engaged  in  interstate  commerce. 

A  freight  conductor  of  a  train  loaded  with  both 
interstate  and  intrastate  freight  which  had  just  been 
made  up  at  a  terminal,  walked  to  the  head  of  the 
train  to  give  the  engineer  his  clearance  card  and 
while  returning  to  the  caboose,  he  walked  along  a 
scale  track  on  which  some  switching  was  being  done 
and  inspected  the  train  as  he  walked.  He  was  hurt 
on  the  scale  track.  Answering  the  argument  of  coun- 
sel that  his  employment  did  not  require  him  to  walk 
on  this  scale  track,  the  court  replied:  ''While  it  may 
not  have  been  his  duty  and  was  carelessness  on  his 
part,  under  the  facts  of  this  case,  to  walk  upon  said 
scale  track,  still  we  think  he  was  engaged  in  inter- 
state commerce  to  the  extent  of  getting  his  train 
ready  for  that  purpose.  It  seems  to  us  that  prepara- 
tion was  being  made  to  have  his  train  leave  Spirit 

56.  North  Carolina  E.  Co.  v.  Zachary,  232  U.  S.  248,  58L.  Ed.  591, 
6  N.  C.  C.  A.  194n,  Ann.  Cas.  1914  C  159n. 

57.  Bramlett  v.  Southern  Ey.  Co.,  —  S.  C.  — ,  6  N.  C.  C.  A.  75n, 
83n,  82  S.  E.  501. 


EMPLOYES  WITHIN   THE  ACT  99 

Lake  and  that  he  was  engaged  in  getting  his  train 
ready  for  the  transportation  of  freight  both  within 
the  state  and  beyond  its  boundaries  and  that  he  was 
engaged  in  interstate  commerce  within  the  meaning 
of  that  term  as  used  in  said  Act  of  Congress. "  ^^  An 
engineer  upon  his  engine  preparing  it  to  be  attached 
to  an  interstate  train  for  the  purpose  of  hauling  it, 
is  engaged  in  interstate  commerce.^^ 

§  39.  Employes  on  Premises  of  Railroad  Company 
Going  to  or  from  Work. — The  federal  statute  not 
only  includes  employes  actually  engaged  in  interstate 
commerce  but  it  also  covers  such  employes  on  the 
railroad  premises  while  going  to  or  from  their  work 
for  in  such  cases  they  are  only  doing  that  which  is 
essential  to  enable  them  to  discharge  their  duties 
as  employes  engaged  in  interstate  commerce.  For 
instance,  a  railroad  section  man  had  been  engaged 
in  ballasting  the  main  track  of  a  railroad  which 
carried  freight  and  passengers  between  different  sta- 
tions. At  the  time  he  was  injured  he  was  returning 
to  the  camp  at  the  conclusion  of  his  day's  labor  on 
a  handcar.  The  court  held  that  he  was  still  engaged 
in  interstate  commerce  within  the  terms  of  the 
national  statute.''^  Another  court  held  that  a  mem- 
ber of  a  track  laying  gang  which  worked  during  the 
usual  hours  in  the  daytime,  was  employed  in  inter- 


58.  Neil  V.  Idaho  E.  Co.,  —  Idaho  — ,  125  Pac.  331. 

59.  Bower  v.  Chicago  &  N.  W.  E.  Co.,  —  Neb.  — ,  6  N.  C.  C.  A.  213n, 
148  N.  W.  145. 

60.  San  Pedro,  L.  A.  &  S.  L.  R,  Co.  v.  Davide,  127  C.  C.  A.  454, 
210  Fed.  870,  6  N.  C.  C.  A.  197n;  accord,  Grow  v.  Oregon  S.  L.  E. 
Co.,  —  Utah  — ,  6  N.  C  C.  A.  83n,  199n,  138  Pac.  398. 


100        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

state  commerce  while  asleep  at  night  in  a  bunk  car 
on  a  side  track.^^ 

A  locomotive  fireman  in  the  employ  of  a  railroad 
company  was  ordered  to  proceed  from  his  home  to 
the  railway  station  of  the  defendant  in  that  town 
and  there  secure  transportation  and  go  on  a  certain 
interstate  train  to  another  town  in  the  same  state 
where  he  was  to  assist  in  relieving  a  train  crew 
which  had  been  employed  continuously  for  more 
than  16  hours  on  an  interstate  train.  After  receiv- 
ing this  order  the  fireman  hastened  to  the  depot  and 
had  reached  a  crossing  in  the  yards  of  the  railroad 
company  where  the  cars  were  cut,  when,  without 
warning,  the  cars  were  suddenly  closed  by  reason 
of  other  cars  being  negligently  "kicked"  against 
the  other  and  he  thereby  sustained  injuries  causing 
his  death.  In  a  subsequent  action  under  the  federal 
act  the  petition  alleged  that  at  the  time  of  the  hap- 
pening of  the  injury  and  death  "and  immediately 
prior  thereto,  he  was  engaged  in  the  perfonnance  of 
his  duty  in  the  employment  of  the  said  Oregon 
Railroad  &  Navigation  Company  in  doing  and  per- 
forming exclusively  the  acts  and  things  necessary 
and  properly  to  be  done  in  the  performance  of  his 
said  duties  in  obedience  to  the  order  of  said  company, 
and  as  a  part  of  the  necessities  and  requirements  of 
the  said  company  in  aid  of  and  as  a  part  of  the 
operation  of  its  cars,  engines  and  trains  in  carrying 
on  defendant's  business  of  interstate  commerce  by 
railroad."     Under  these  facts  it  was  held  by  the 

61.  Sanders  v.  Charleston  &  W.  C.  Ry.  Co.,  —  S.  C.  — ,  6  N.  C.  C.  A. 
200n,  81  S.  E.  283.    See  §  14,  supra. 


EMPLOYES   WITHIN   THE   ACT  101 

Federal  Circuit  Court  of  Appeals  that  the  decedent 
was  employed  in  interstate  commerce,  the  court  say- 
ing: "The  decedent  when  he  was  killed  was  not  only 
on  his  way  to  work  for  his  employer,  but  he  was 
proceeding  under  the  direct  and  peremptory  com- 
mand of  the  railroad  company  to  do  a  designated 
specific  act  in  the  service  of  the  company,  to- wit,  to 
move  a  train  then  engaged  in  interstate  commerce. 
He  was  on  the  premises  of  the  railroad  company  and 
in  the  discharge  of  his  duty  when  he  met  his  death 
and  the  train  which  struck  him  and  caused  his  death 
was  engaged  in  interstate  commerce,  and  belonged 
to  the  same  railroad  company."  *^2 

Assuming  that  the  employe  was  either  returning 
from  or  going  to  work  for  the  company  in  interstate 
commerce,  the  question  as  to  whether  he  was  en- 
gaged in  interstate  commerce  while  so  going  to  or 
from  his  work,  will  depend  upon  the  further  ques- 
tion as  to  when  the  relation  of  master  and  servant 
commences  or  ends,  as  the  case  may  be  and  the 
solution  of  this  problem  must  be  made  in  the  light 
of  common  law  decisions  applicable.  The  relation 
of  master  and  servant  in  so  far  as  the  obligation  to 
protect  the  employe  is  concerned  begins  when  the 
employe  is  necessary  on  the  premises  of  the  master 
pursuant  to  his  contract  of  employment.®^    A  fireman 

62.  Lamphere  v.  Oregon  E.  &  N.  Co.,  116  C.  C.  A.  156,  196  Fed. 
336,  6  N,  C.  C.  A.  187n,  47  L.  R.  A.  (N.  S.)  In,  reversing  same  case 
reported  in  193  Fed.  248;  accord,  Missouri,  K.  &  T.  Ry.  Co.  v.  Rentz, 
—  Tex.  Civ.  App.  — ,  6  N.  C.  C.  A.  195n,  162  S.  W.  959. 

63.  Lamphere  v,  Oregon,  R.  &  N.  Co.,  116  C.  C.  A.  156,  196  Fed. 
336,  6  N.  C.  C.  A.  187n,  47  L.  R.  A.  (N.  S.)  In;  Packet  Co.  v.  McCue, 
17  Wall,  (N.  S.)  508,  21  L.  Ed.  705;  Dishon  v.  Cincinnati,  N.  O.  & 
T.  P.  Ry.  Co.  (C.  C.  A.),  126  Fed.  194;  Olsen  v.  Andrews,  168  Mass. 


102        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

left  his  engine  in  tlie  railroad  yards  and  went  to  his 
boarding  house  on  a  personal  errand.  While  he  was 
walking  through  the  yards  he  was  struck  by  some 
cars.  On  his  return  he  expected  to  fire  an  engine 
pulling  an  interstate  train.  It  was  held  that  he  was 
engaged  in  interstate  commerce  at  the  time  of  the 
casualty.^^  A  hostler  who  worked  in  a  roundhouse 
on  engines  used  in  hauling  both  interstate  and  intra- 
state commerce  was  held  not  to  be  engaged  in  inter- 
state commerce  while  he  was  walking  through  the 
yards  to  a  rest  shanty  on  the  property  of  the  railroad 
company.^^  An  extra  brakeman,  working  for  a  rail- 
road company,  having  been  sent  out  on  a  passenger 
train  carrying  interstate  passengers  as  a  brakeman 
was,  at  the  time  of  his  injuries,  retuniing  on  another 
train  on  a  ''pass"  back  to  the  division  point.  In 
railway  parlance  he  was  "dead-heading"  back  to  his 
headquarters.  The  court  held  that  he  was  engaged 
in  interstate  commerce  although  he  was  not  em- 
ployed on  the  train  he  was  riding  on.*'''  A  member 
of  a  track  laying  gang  while  resting  on  Sunday  in  a 
camp  on  the  right  of  way  was  directed  by  one  of  the 
foremen  to  get  on  a  passing  train  in  order  to  get  the 

261;  Boldt  v.  New  York  C.  E.  Co.,  18  N.  Y.  432;  Ewald  v.  Chicago  & 
N.  W.  R.  Co.,  70  Wis.  420,  5  Am.  St.  Rep.  178;  PhUadelphia,  B.  & 
W.  R.  Co.  V.  Tucker,  35  App.  Cas.  (D.  C.)  123,  1  N.  C.  C.  A.  841n. 

64.  North  Carolina  R.  Co.  v.  Zachary,  232  U.  S.  248,  58  L,  Ed.  591, 
6  N.  C.  C.  A.  194n,  Ann.  Cas.  1914  C  159n. 

65.  Gray  v.  Chicago  &  N.  W.  Ry.  Co.,  153  Wis.  636,  4  N.  C.  C. 
A.  225n.  The  court  in  this  case  also  held  that  hostlers  working  on 
engines  used  indiscriminately  in  carrying  both  interstate  and  intra- 
state commerce  were  not  engaged  in  interstate  commerce.  See  §  31, 
supra. 

66.  St.  Louis  &  S.  W.  Ry.  Co,  v.  Brothers,  —  Tex.  Civ.  App.  — , 
165  S.  W.  488. 


EMPLOYES    WITHIN   THE   ACT  103 

mail  for  the  camp  at  the  next  station.  When  he  tried 
to  get  on  the  train  he  fell  and  was  injured.  The  court 
held  that  he  was  not  engaged  in  interstate  com- 
merce.^^  A  railroad  employe  at  the  time  he  was 
injured  had  completed  his  work  for  the  day  and  had 
left  the  work  shop  and  the  premises  of  the  railroad 
company.  He  was  walking  along  a  street  when  he 
was  struck  by  a  piece  of  timber  thrown  from  a  train 
belonging  to  the  railroad  company  for  which  he 
worked.  The  court  held  that  the  relation  of  master 
and  servant  did  not  exist  so  as  to  render  the  company 
liable  for  the  act  of  another  employe  in  negligently 
throwing  the  timber.*^^  A  railroad  employe  while 
riding  home  on  one  of  the  company's  trains  was  held 
not  employed  in  interstate  commerce  as  there  was 
no  evidence  introduced  to  show  that  he  was  then 
or  had  been  employed  in  interstate  commerce.*'^  The 
opinion  does  not  disclose  the  nature  of  his  employ- 
ment for  the  railroad  company. 

§  40.  Employes  Engaged  in  the  Original  Construc- 
tion of  Instrumentalities  for  Future  Use  in  Interstate 
Commerce  Not  Within  the  Act. — Employes  assisting 
in  the  original  construction  of  tracks,  tunnels, 
bridges,  engines  or  cars  which  have  never  been  used 

67.  Meyers  v.  Norfolk  &  W.  Ey.  Co.,  —  N.  C.  — ,  78  S.  E.  280.  The 
court  in  this  case  based  its  decision  on  three  cases  subsequently  over- 
ruled in  a  higher  court,  St.  Louis,  S.  F.  &  F.  E.  Co.  v.  Scale,  229  U.  S. 
156,  57  L.  Ed.  1129,  Ann.  Gas.  1914  C  156n;  Lamphere  v.  Oregon  R. 
&  N.  Co.,  193  Fed.  248,  116  C.  C.  A.  156,  196  Fed.  336,  6  N.  C.  C.  A. 
187n,  47  L.  E.  A.  (N.  S.)  In;  Pederson  v.  Delaware,  L.  &  W.  K.  Co., 
117  C.  C.  A.  33,  197  Fed.  537. 

68.  Fletcher  v.  Baltimore  &  O.  E.  Co.,  168  U.  S.  135,  42  L.  Ed.  4J.1, 
reversing  same  case  reported  in  6  App.  Cas.  (D.  C.)  385. 

69.  Bennett  v.  Lehigh  V.  E.  Co.,  197  Fed.  578. 


104        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

as  instrumentalities  of  interstate  commerce,  are  not 
employed  in  interstate  commerce  within  the  meaning 
of  the  statute/*^  An  interstate  railroad  company 
was  constructing  a  "cnt-off"  so  as  to  shorten  a 
route  used  by  it  which,  when  completed,  would  have 
been  used  for  hauling  interstate  commerce.  A 
teamster  was  engaged  in  driving  a  horse  which 
pulled  cars  filled  with  dirt  and  rock  along  the  track 
out  of  a  tunnel  which  was  a  part  of  the  "cut-off" 
line.  It  was  held  that  he  was  not  engaged  in  inter- 
state commerce  and  the  mere  fact  that  the  line,  when 
completed,  would  be  used  in  transporting  interstate 
commerce,  would  make  no  difference."^  In  that  case, 
the  court  said:  "Stripped  of  the  conclusions  in  the 
complaint,  we  have  the  fact  that  the  defendant  is 
engaged  in  constructing  a  'cut-off'  on  its  line  of 
road  so  as  to  shorten  the  route  used  by  it  now  and 
eliminate  some  of  the  inconveniences,  and  possible 
expense,  in  the  operation  of  the  line  at  the  present 
time.  There  is  no  statement  that  this  line,  upon 
which  the  work  is  being  performed,  is  now  used, 
but  the  complaint  in  paragraph  3  says,  '  and  through 
which,  when  completed,  the  interstate  commerce 
*  *  *  will  be  routed.'  The  plaintiff  was  not 
himself  engaged  upon  any  interstate  commerce,  nor 
was  he  injured  by  any  one  connected  with  the  opera- 

70.  Pederson  v.  Delaware,  L.  &  W.  E.  Co.,  229  U.  S.  146,  57  L.  Ed. 
1125,  6  N.  C.  C.  A.  198ii,  924n,  Ann.  Cas.  1914  C  153n,  reversing  the 
same  ease  in  117  C.  C.  A.  33,  197  Fed.  537,  which  affirmed  184 
Fed.  737. 

71.  Jackson  v.  Chicago,  St  P.  &  M.  E.  Co.,  210  Fed.  495,  6  N.  C. 
C.  A.  200n.  See  dissenting  opinion  in  Grow  v.  Oregon  S.  L.  R.  Co., 
—  Utah  — .  138  Pac.  398,  6  N.  C,  C.  A.  83n,  199n. 


EMPLOYES  WITHIN   THE  ACT  105 

tion  of  any  of  the  agencies  which  actually  trans- 
ported interstate  commerce.  The  building  of  this 
cut-off  is  a  facility  which  is  to  be  used  by  the  de- 
fendant, when  completed,  as  an  engine  or  cars,  or 
any  other  appliance  under  construction  might  be 
considered  for  use  when  completed.  Can  it  be  said 
that  a  person  engaged  in  the  building  of  engines  or 
cars,  or  any  other  facilities  to  be  used  by  a 
common  carrier  engaged  in  interstate  commerce, 
comes  within  the  provisions  of  the  Employers' 
Liability  Act?  The  act  deals  only  with  the  liability 
of  a  carrier  engaged  in  interstate  commerce  for  in- 
juries sustained  by  its  employes  while  engaged  in 
such  commerce.  Second  Employers'  Liability  Cases, 
223  U.  S.  1,  32  Sup.  Ct.  169,  56  L.  Ed.  327  (1  N.  C.  C. 
A.  875),  38  L.  R.  A.  (N.  S.)  44.  The  act  is  not 
'concerned  with  the  construction  of  tracks,  bridges, 
engines,  or  cars  which  have  not  as  yet  become  instru- 
mentalities in  such  commerce,  but  only  with  the  work 
of  maintaining  them  in  proper  condition  after  they 
have  become  such  instrumentalities,  and  during  their 
use  as  such. '  Pederson  v.  Del.,  Lack.  &  West.  R  R., 
229  U.  S.  146,  152,  33  Sup.  Ct.  648,  57  L.  Ed.  1125 
(6  N.  C.  C.  A.  198n,  924n,  Ann.  Cas.  1914  C  153n). 
The  language  of  the  complaint,  'when  completed, 
the  interstate  commerce  *  *  *  -^in  \)q  routed' 
through  the  tunnel,  conclusively  shows  that  it  is 
not  now  so  employed;  hence  the  act  cannot  apply, 
and  Supreme  Court  decisions  supra  are  decisive. 
Tested  by  the  requirements  of  the  act,  I  do  not  think 
that  the  tunnel  was  used  as  an  appliance  in  trans- 
porting interstate  commerce,  nor  was  the  plaintiff 


106        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

employed  in  sucli  commerce.    All  of  the  cases  cited, 
I  think,  are  in  harmony  with  this  conclusion." 

§  41.  Repairing  or  Rebuilding  Instrumentalities 
Used  in  Interstate  Commerce. — On  the  other  hand 
a  carpenter  employed  in  sawing  boards  and  nailing 
them  in  place  on  the  wall  of  a  new  office  in  a  freight 
shed  of  a  railroad  company  which  was  engaged  in 
both  interstate  and  intrastate  commerce,  was  held 
to  be  employed  in  interstate  commerce.'^^  The  rea- 
son for  so  holding  was  that  freight  sheds,  depots 
and  warehouses,  or  other  facilities  provided  and  used 
by  a  carrier  for  receiving,  handling  and  discharging 
interstate  freight  were  as  much  instrumentalities 
used  in  interstate  commerce  as  engines,  cars  and 
bridges,  so  used  indiscriminately  in  both  kinds  of 
commerce.  Distinguishing  this  case  from  the  cases 
cited  in  the  foregoing  section,  the  court  said : ' '  Claim 
is  made  that,  since  plaintiff  at  the  time  of  his  injury 
was  at  work  in  framing  a  new  office  in  the  freight 
shed,  he  is  in  the  position  of  one  employed  to  con- 
struct buildings,  tracks,  engines,  or  cars,  which  have 
not  yet  become  instrumentalities  of  commerce.  But 
the  freight  shed  in  question  was  being  so  used  by  the 
defendant  in  its  interstate  business.  The  work  in 
which  the  plaintiff  was  engaged,  as  appears  from 

72.  Eng.  V.  Southern  Ry.  Co.,  210  Fted.  92,  6  N.  C.  C.  A.  78n, 
79n,  200n.  A  carpenter  while  employed  in  moving  debris  from  a 
roundhouse  which  had  been  partially  destroyed  by  fire  in  order  that 
a  new  roundhouse  might  be  erected  for  railroad  purposes  was  injured 
while  so  working.  The  roundhouse  was  used  by  the  defendant  in 
housing  engines  engaged  in  hauling  interstate  commerce.  The  court 
held  that  the  plaintiff  was  engaged  in  interstate  commerce,  as  he  was 
repairing  an  instrumentality  of  such  commerce.  Thomas  v.  Boston 
&  M.  R.  Co.,  219  Fed.  (C.  C.  A.)  180. 


EMPLOYES   WITHIN    THE    ACT  107 

tlie  complaint,  was  in  the  nature  of  the  repair  of  an 
instrumentality  so  used,  and  not  the  construction  of 
new  work."  Applying  the  same  principle,  another 
court  held  that  an  employe  in  the  signal  service  was 
employed  in  interstate  commerce  when  he  was  in- 
stalling a  new  block  system  to  be  used  in  signaling 
trains  on  an  interstate  railroad.^  ^ 

§  42.  Yard  Clerks  Engaged  in  Interstate  Com- 
merce, When. — Yard  clerks  in  the  employ  of  com- 
mon carriers  by  railroad  while  examining  and  re- 
cording the  numbers  and  initials  of  cars,  inspect- 
ing and  making  a  record  of  the  seals  on  car  doors, 
checking  the  cars  with  the  conductors'  lists  or  put- 
ting labels  on  the  cars  to  guide  switching  crews  are 
employed  in  interstate  commerce  if  trains  upon 
wliich  they  are  so  working  have  any  cars  containing 
interstate  commerce.'^^ 

In  the  case  of  St.  Louis,  S.  F.  &  T.  R.  Co.  v.  Scale, 
cited  in  the  notes,  the  decedent  was  a  yard  clerk  and 
at  the  time  of  his  injury  and  death  he  was  on  his 
way  through  a  railroad  yard  to  one  of  the  tracks  to 
meet  an  incoming  freight  train  which  had  arrived 
from  another  state.  He  was  going  to  the  train  to 
take  the  numbers  of  the  cars  and  otherwise  perform 
his  duties  in  respect  to  them.  Wliile  so  engaged  he 
was  struck  by  a  switch  engine,  which,  it  was  claimed, 
was  negligently  operated  by  other  employes.  The 
Supreme  Court  of  the  United  States  held  that  the 

73.  Grow  V.  Oregon,  S.  L.  Co.,  —  Utah  — ,  6  N.  C.  C.  A.  83n,  199ii, 
138  Pac.  398;  accord,  &'aunders  v.  Southern  Ey.  Co.,  —  N.  C.  — , 
83  S.  E.  573. 

74.  St.  Louis,  S.  F.  &  T.  E.  Co.  v.  Seale,  229  U.  S.  156,  57  L.  Ed. 
1129,  3  N.  C.  C.  A.  800,  Ann.  Cas.  1914  C  156n. 


108        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

decedent  was  engaged  in  interstate  commerce  at  the 
time  of  his  death,  Mr.  Justice  Lamar,  dissenting. 
Discussing  the  legal  effects  of  the  facts  mentioned, 
the  court  said:  "In  our  opinion  the  evidence  does 
not  admit  of  any  other  view  than  that  the  case  made 
by  it  was  within  the  federal  statute.  The  train 
from  Oklahoma  was  not  only  an  interstate  train  but 
was  engaged  in  the  movement  of  interstate  freight; 
and  the  duty  which  the  deceased  was  performing 
was  connected  with  that  movement,  not  indirectly 
or  remotely,  but  directly  and  immediately.  The  in- 
terstate transportation  was  not  ended  merely  be- 
cause that  yard  was  a  terminal  for  that  train,  nor 
even  if  the  cars  were  not  going  to  points  beyond. 
Whether  they  were  going  further  or  were  to  stop 
at  that  station,  it  still  was  necessary  that  the  train 
be  broken  up  and  the  cars  taken  to  the  appropriate 
tracks  for  making  up  outgoing  trains,  or  for  unload- 
ing or  delivering  freight,  and  this  was  as  much  a 
part  of  the  interstate  transportation  as  was  the 
movement  across  the  state  line." 

§  43.  Pullman  Employes. — Persons  employed 
jointly  by  a  sleeping  car  company  and  a  railroad 
company  are  within  the  protection  of  the  federal 
act.  A  Pullman  porter  was  employed  on  a  sleeping 
car  which  was  owned  jointly  by  the  Pullman  Com- 
pany and  a  railroad  company  and  the  car  was  oper- 
ated by  them  as  an  association  under  a  contract.  It 
was  held  that  the  administrator  of  his  estate  could 
recover  under  the  national  statute.'^^  On  the  other 
hand  in  another  case  the  railroad  company  simply 

75.  Oliver  v.  Northern  P.  E.  Co.,  196  Fed.  432. 


EMPLOYES  WITHIN  THE  ACT  109 

hauled  cars  of  the  Pullman  Company  under  a  con- 
tract and  it  was  decided  that  a  porter  on  the  sleep- 
ing car  belonging  to  the  Pullman  Company  was  not 
an  employe  of  the  railroad  company  within  the  mean- 
ing of  the  federal  statute/^ 

§  44.  Agents  of  Express  Companies. — Agents  of 
express  companies  riding  on  passenger  trains  are 
not  employes  of  the  railroad  company  within  the 
meaning  of  the  federal  act  where  they  are  paid  and 
employed  by  the  express  companies  although  they 
handle  baggage  of  passengers  on  the  train.^^  In 
another  case  it  was  decided  that  an  express  messen- 
ger employed  and  paid  by  an  express  company,  while 
riding  on  a  passenger  train  of  a  railroad  company 
and  looking  after  the  express  business  of  his  em- 
ployer was  presumed  to  be  a  passenger  and  not  a 
servant  of  the  railroad  company  although  he  was 
killed  while  so  employed  through  the  negligence  of 
the  railroad  company's  employes."^  It  was  held 
by  the  court  that,  in  the  absence  of  any  evidence  that 
he  was  employed  by  the  railroad  company,  the  evi- 
dence was  sufficient  to  show  that  the  negligence  of 
the  defendant  caused  his  death. 

§  45.  Miscellaneous  Employes. — A  gardner  who 
was  employed  by  a  common  carrier  by  railroad  of 
interstate  commerce,  in  taking  care  of  the  depot 
premises  and  burning  trash  gathered  in  the  yard 
was  held  not   to   be   employed  in  interstate  com- 

76.  Robinson  v.  Baltimore  &  O.  R.  Co.,  40  App.  Caa.  (D.  C.)  169. 

77.  Missouri,  K.  &  T,  R.  Co.  v.  West,  —  Okla.  — ,  134  Pac.  655. 

78.  Missouri,  K.  &  T.  R.  Co.  v.  Blalack,  105  Tex.  296. 


110        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

merce.''^'^  In  an  action  under  the  federal  act  a  pe- 
tition alleged  that  the  defendant  railroad  company 
was  a  common  carrier  engaged  in  interstate  com- 
merce ;  that  as  a  part  of  its  interstate  transportation 
it  owned  and  operated  a  telegraph  line  using  it  for 
the  purpose  of  directing  the  operation  of  trains ;  that 
the  plaintiff  was  employed  by  the  company  in  repair- 
ing this  line  and  was  injured  while  doing  so.  The 
court  held  that  the  petition  pleaded  sufficient  facts 
to  show  that  the  plaintiff  was  engaged  in  interstate 
commerce. ^^  A  watchman  on  a  "dead"  locomotive 
engine  being  transported  in  an  interstate  train  was 
held  to  have  been  engaged  in  interstate  commerce.®^ 
A  laborer  employed  in  carrying  coal  to  heat  the 
stoves  in  a  car  repair  shop  of  a  common  carrier  by 
railroad  where  other  employes  were  engaged  in  re- 
pairing rolling  stock  used  interchangeably  in  trans- 
porting intrastate  and  interstate  commerce,  was 
held  to  be  within  the  protection  of  the  federal  act.^^ 
§46.  Instances  Where  Employes  Were  Engaged 
in  Interstate  Commerce  but  Erroneously  Held  to 
Have  Been  Engaged  in  Intrastate  Commerce. — Since 
the  decisions  of  the  United  States  Supreme  Court 
in  the  Pedersen,  Scale,  Walsh,  Zachary  and  Behrens 
cases  ^^  some  uncertainty  as  to  when  a  railroad  em- 

79.  Galveston,  H.  &  S.  A.  Ry.  Co.  v.  Chojnacky,  —  Tex.  Civ.  App.  — , 
163  S.  W.  1011. 

80.  Deal  v.  Coal  &  Coke  Ry.  Co.,  215  Fed.  285. 

81.  Atlantic  C.  L.  R.  Co.  v.  Jones,  9  Ala.  499,  6  N.  C.  C.  A.  26n, 
80n,  192n. 

82.  Cousins  v.  Illinois  C.  R.  Co.,  —  Minn.  — ,  6  N.  C.  C.  A.  182, 
148  N.  W.  58. 

83.  Pedersen  v.  Delaware,  L.  &  W.  R.  Co.,  229  U.  S.  146,  57  L.  Ed. 
1125,  6  N.  C.  C.  A.  198n,  924n,  Ann.  Cas.  1914  0  153n;  St.  Louis,  S.  F. 


EMPLOYES   "WITHIN   THE   ACT  111 

ploye  is  engaged  in  interstate  commerce  has  been 
removed  and  decisions  in  conflict  with  the  rulings 
in  these  cases  are  erroneous  for  the  final  arbiter  as 
to  when  a  railroad  servant  is  employed  in  interstate 
commerce  is  the  national  Supreme  Court.  Some  of 
these  erroneous  decisions  will  now  be  briefly  re- 
viewed. 

The  Georgia  Court  of  Appeals  held  that  a  mem- 
ber of  a  track  gang  repairing  the  track  on  a  railroad 
carrying  both  intrastate  and  interstate  commerce 
was  not  engaged  in  interstate  commerce.^^  This  de- 
cision is  contrary  to  the  decision  in  the  Pedersen 
case,  supra.  The  Supreme  Court  of  Wisconsin  held 
that  a  boiler  maker  repairing  a  boiler  of  a  derrick 
car  on  a  wrecking  train  was  not  engaged  in  inter- 
state commerce.*^  It  appeared  from  the  evidence 
that  this  wrecking  train  was  used  in  clearing  wrecks 
on  a  track  used  for  the  transportation  of  interstate 
commerce  not  only  in  one  state  but  in  other  states  as 
well  for  the  railroad  company.  The  court  in  this 
decision  cited  and  followed  the  decision  of  the  Fed- 
eral Circuit  Court  of  Appeal  in  deciding  the  Peder- 
sen case  which  was  later  overruled  by  the  national 
Supreme  Court.     The  decision  of  the  court  in  the 

&  T.  E.  Co.  V.  Seale,  229  U.  S.  156,  57  L.  Ed.  1129,  3  N.  C.  C.  A.  800, 
Ann.  Cas.  1914  C  156n;  Walsh  v.  New  York,  N.  H.  &  H.  R.  Co.,  223 
U.  S.  5,  56  L.  Ed.  327,  1  N.  C.  C.  A.  875,  38  L.  E.  A.  (N.  S.)  44; 
North  Carolina  E.  Co.  v.  Zachary,  232  U.  S.  248,  58  L.  Ed.  591, 
6  N.  C.  C.  A.  194n,  Ann.  Cas.  1914  C  159n;  lUinois  C.  E.  Co.  v. 
Behrens,  233  U.  S.  473,  58  L.  Ed.  1051,  6  N.  C.  C.  A.  189n,  Ann.  Cas. 
1914  C  163n. 

84.  Charleston  &  W.  C.  Ey.  Co.  v.  Anchors,  10  Ga.  App.  329. 

85.  Euck  V.  Chicago,  M.  &  St.  P.  Ey.  Co.,  153  Wis.  158,  6  N.  C.  C.  A. 
204n. 


112        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

Euck  case  is  not  in  harmony  with  the  controlling 
rulings  of  the  national  courts.  And  in  still  a  later 
case  the  Supreme  Court  of  Wisconsin  held  that 
hostlers  in  roundhouses  working  on  engines  used  in- 
discriminately in  carrying  both  interstate  and  intra- 
state commerce  were  not  employed  in  interstate  com- 
merce.^*^  This  decision  too  is  in  conflict  with  the 
rulings  of  the  national  courts. 

The  New  Jersey  court  of  appeals  decided  that  an 
employe  unloading  new  rails  with  which  the  track 
was  to  be  repaired  was  not  engaged  in  interstate 
commerce.  Assuming  that  the  proof  in  that  case 
developed  what  is  true  of  practically  every  railroad 
in  the  United  States,  that  interstate  and  intrastate 
commerce  were  carried  over  the  track  indiscrimi- 
nately, the  court's  ruling  was  wrong.^'''  The  same 
court  in  a  later  case  held  that  an  employe  was  en- 
gaged in  intrastate  commerce  when  he  was  clearly 
under  the  facts  engaged  in  interstate  commerce.^* 
The  plaintiff  in  that  case  was  injured  while  placing 
a  cover  over  the  mechanism  of  a  switch  which  he 
had  just  oiled.  The  switch  connected  two  lines  of 
track,  one  used  for  freight  and  the  other  for  pas- 
senger trains  for  either  interstate  or  intrastate  busi- 
ness as  the  business  necessities  of  the  railroad 
company  required.  While  so  engaged  the  plaintiff 
was  struck  by  a  car  which  was  not  at  the  time  being 
used  for  the  transportation  of  freight  nor  did  it 

86.  Gray  v,  Chicago  &  N.  W.  Ey.  Co.,  153  Wis.  636,  4  N.  C.  C.  A. 
225n. 

87.  Pierson  v.  New  York,  S.  &  W.  E.  Co.,  83  N.  J.  L.  661. 

88.  Granger  v.  Pennsylvania  E.  Co.,  —  N.  J.  L.  — ,  86  Atl.  264. 


EMPLOYES    WITHIN    THE   ACT  113 

appear  that  the  movement  of  the  car  had  any  rela- 
tion to  the  making  up  of  a  train  for  the  purpose  of 
engaging  in  interstate  commerce.  It  was  held  that 
the  plaintiff's  cause  of  action  was  not  governed  by 
the  federal  act  and  that  he  was  not  engaged  in 
interstate  commerce.  This  ruling  was  erroneous 
for  the  reason  that  the  switch  on  which  plaintiff  was 
working  had  a  direct  and  immediate  connection  with 
interstate  commerce.  The  question  whether  the  car 
was  being  used  in  interstate  commerce  was  entirely 
immaterial  for  the  reason  that  the  federal  act  in- 
cludes causal  negligence  of  agencies  used  wholly  in 
intrastate  commerce.^^ 

A  federal  district  court  held  that  a  carpenter 
working  on  a  railroad  bridge  on  a  track  carrying 
both  kinds  of  commerce  was  not  engaged  in  inter- 
state commerce.^"  This  case  is  in  effect  overruled  by 
the  decision  of  the  United  States  Supreme  Court  in 
the  Pedersen  case.  The  Supreme  Court  of  Nebraska 
held  that  an  engineer  running  a  '4ight"  engine  be- 
tween two  points  in  that  state,  which,  the  defendant 
claimed,  was  ultimately  destined  to  a  point  in  an- 
other state,  was  not  engaged  in  interstate  com- 
merce.®^ Under  the  ruling  of  the  Supreme  Court  in 
the  Zachary  case,  supra,  an  employe  hauling  empty 

89.  Second  Employers'  Liability  Cases,  223  U.  S.  1,  56,  56  L.  Ed. 
327,  1  N.  C.  C.  A.  875,  38  L.  E.  A.  (N.  S.)  44;  Pedersen  v.  Delaware, 
L.  &  W.  Ey.  Co.,  229  U.  S.  146,  57  L.  Ed.  1125,  6  N.  C.  C.  A.  198n, 
924n,  Ann.  Cas.  1914  C  153n;  Colasurdo  v.  Central  E.  Co.  of  New 
Jersey,  180  Fed.  832;  s.  c,  113  C.  C.  A.  379,  192  Fed.  901.  Section 
20,  supra. 

90.  Taylor  v.  Southern  Ey.  Co.,  178  Fed.  380. 

91.  Wright  V.  Chicago,  E.  I.  &  P.  E.  Co.,  94  Neb.  317,  6  N.  C.  C.  A. 
183n. 

Boberta  Liabilities — S 


114        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

cars  from  a  point  in  one  state  to  a  point  in  another 
is  engaged  in  interstate  commerce  and  the  ruling  in 
the  Wright  case  is  wrong  if  the  engine  was  destined 
to  another  state  and  it  matters  not  that  the  employe 
was  not  going  beyond  the  state.  It  is  not,  however, 
very  clear  in  the  report  of  the  case  whether  the  en- 
gine was  on  its  way  to  machine  shops  in  another 
state.  In  a  case  decided  by  the  Supreme  Court  of 
Louisiana  a  hostler  working  on  an  engine  in  a  round- 
house which  had  just  returned  from  an  intrastate 
journey,  was  held  not  engaged  in  interstate  com- 
merce.^2  But  the  evidence  also  disclosed  that  on  the 
previous  day  the  engine  had  been  used  in  transport- 
ing interstate  commerce  and  it  was  used  indiscrim- 
inately in  hauling  both  kinds  of  cormnerce.  The 
court  held  that  a  hostler  repairing  engines  employed 
indiscriminately  in  moving  both  interstate  and  in- 
trastate commerce,  was  not  engaged  in  interstate 
commerce.  This  decision  too  is  not  in  harmony  with 
the  rulings  of  the  national  courts. 

§  47.  Instances  Where  Employes  Were  Engaged 
Exclusively  in  Intrastate  Commerce  but  Errone- 
ously Held  by  the  Courts  to  Have  Been  Engaged  in 
Interstate  Commerce. — In  the  cases  discussed  in  the 
preceding  paragraph  the  courts  erroneously  held 
that  the  employes  were  engaged  in  intrastate  com- 
merce. There  are  other  cases  where  employes  were 
engaged  exclusively  in  intrastate  commerce  but  were 
erroneously  held  by  the  courts  to  have  been  engaged 
in  interstate  commerce. 

92.  LaCasse  v.  New  Orleans,  T.  &  M.  E.  Co.,  —  La.  — ,  6  N.  C.  C.  A. 

19611,  437n,  64  So.  1012. 


EMPLOYES   WITHIN   THE   ACT  115 

The  Supreme  Court  of  Oregon  decided  that  a  mem- 
ber of  a  switching  crew  while  coupling  a  switch 
engine  to  a  private  car  used  wholly  within  the  state 
in  intrastate  commerce  and  injured  while  so  work- 
ing, was  employed  in  interstate  commerce.  The 
proof,  however,  disclosed  that  the  switching  crew 
was  engaged  indiscriminately  in  moving  cars  con- 
taining both  intrastate  and  interstate  commerce  but 
at  the  time  of  receiving  the  injury  they  were  en- 
gaged solely  in  moving  the  intrastate  car  men- 
tioned.^^ Although  the  decision  in  this  case  was 
handed  down  after  the  opinion  of  the  Supreme  Court 
of  the  United  States  in  the  Behrens  case,^^  that  case 
was  not  called  to  the  attention  of  the  court  and  no 
doubt  a  different  conclusion  would  have  been  reached 
had  the  court  considered  the  facts  in  the  light  of  the 
ruling  in  the  Behrens  case. 

The  Supreme  Court  of  Minnesota  held  that  a 
freight  conductor  was  engaged  in  interstate  com- 
merce when  under  the  facts  it  seems  that  he  was 
engaged  in  intrastate  commerce.^^  The  evidence  in 
that  case  disclosed  that  the  injured  conductor  was 
generally  employed  in  interstate  commerce.  But  at 
the  time  he  was  injured  in  a  head-end  collision  the 
train  did  not  contain  any  interstate  commerce  and 
was  moving  between  two  points  in  the  same  state. 
At  the  time  of  the  accident  he  had  in  his  train  the 

93.  Oberlin  v.  Oregon  W.  R.  &  N.  Co.,  —  Ore.  — ,  6  N.  C.  C.  A.  75n, 
79n,  95n,  188n,  142  Pac.  554. 

94.  Illinois  C.  E.  Co.  v.  Behrens,  223  U.  S.  473,  58  L.  Ed.  1051, 
6  N.  C.  C.  A.  189n,  Ann.  Cas.  1914  C  163n. 

95.  Peery  v.  Illinois  C.  R.  Co.,  123  Minn.  264,  6  N.  C.  C.  A.  184n; 
s.  c,  —  Minn.  — ,  150  N.  W.  382. 


116        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

engine,  way  car  and  also  another  disabled  locomo- 
tive. No  facts  appeared  as  to  the  use  of  the  disabled 
locomotive.  Under  these  circumstances  the  con- 
ductor is  presumed  to  have  been  engaged  in  intra- 
state commerce.'*'^  In  another  case  a  federal  dis- 
trict court  held  that  a  switching  crew  generally  en- 
gaged in  moving  interstate  commerce  but  at  the  time 
employed  in  moving  intrastate  commerce  solely,  was 
engaged  in  interstate  commerce  within  the  meaning 
of  the  federal  act.*^^  But  this  case  was  reversed  when 
it  reached  the  Supreme  Court  of  the  United  States. 

§  48.  Employes  Presumed  to  Be  Enga,ged  in  Intra- 
state Commerce. — Until  the  contrary  is  alleged  or 
shown,  it  will  be  presumed  in  an  action  for  injuries 
to  a  railroad  employe  through  the  negligence  of  his 
employer  in  the  use  or  operation  of  its  railway  within 
the  state,  that  he  was  engaged  in  intrastate  com- 
merce and  that  he  is  seeking  a  remedy  under  the 
laws  of  the  state.'' ^  But  another  court  held  that  in 
such  actions  the  court  will  take  judicial  notice  that 
the  railroad  company  was  engaged  in  interstate 
commerce.^^ 

§  49.  Intrastate  Employes  Injured  by  Negligence 
of  Interstate  Employes  or  Instrumentalities  of  In- 
terstate Commerce  Have  No  Remedy  Under  Federal 
Act. — When  a  servant  is  employed  exclusively  in  in- 

96.  Section  48,  infra. 

97.  Behrens  v.  Illinois  C.  E.  Co.,  192  Fed.  581,  3  N.  C.  C.  A. 
781n,  783. 

98.  Bradbury  v.  Chicago,  R.  I.  &  P.  Ry,  Co.,  149  Iowa  51 ;  Erie  E. 
Co.  V.  Welsh,  —  Ohio  — ,  6  N.  C.  C.  A.  77n,  188n,  105  N.  E.  190n; 
Chicago,  R.  I,  &  P.  Ry.  Co.  v.  McBee,  —  Okla.  — ,  145  Pac.  331. 

99.  Mcintosh  v.  St.  Louis,  S.  F,  R.  Co.,  —  Mo.  App.  — ,  168 
S.  W.  821. 


EMPLOYES   WITHIN   THE  ACT  117 

trastate  commerce  at  the  time  of  his  injury,  lie  has 
no  remedy  under  the  federal  act,  although  injured 
by  another  employe  engaged  at  the  time  in  interstate 
commerce  or  by  instrumentalities  or  appliances  used 
at  the  time  in  interstate  commerce,  as  for  instance, 
an  interstate  train  on  an  interstate  highway;  be- 
cause under  such  conditions  the  employe  himself  is 
not,  at  the  time  of  the  injury,  engaged  in  interstate 
commerce.  Under  the  very  terms  of  the  act  a  recov- 
ery is  limited  to  employes  who  are  injured  "^ while" 
employed  in  interstate  commerce.  Under  the  con- 
ditions named,  it  is  true  that  the  carrier  is  engaged 
in  interstate  commerce  but  the  injured  employe  is 
not.  However,  as  pointed  out  in  another  paragraph, 
if  the  employe  is  engaged  in  interstate  commerce  at 
the  time  of  his  injury  although  the  employe  whose 
negligence  caused  the  injury  is  engaged  exclusively 
in  intrastate  commerce  or  the  instrumentality  caus- 
ing the  injury  is  being  used  solely  in  intrastate  com- 
merce, the  injured  employe's  remedy  is  nevertheless 
controlled  by  the  federal  act.^^^ 

§50.  Decisions  Construing  Federal  Safety  Act 
Not  Always  Applicable  in  Construing  Employers' 
Liability  Act. — In  determining  when  an  employe  is 
engaged  in  interstate  commerce  under  the  Federal 
Employers '  Liability  Act,  some  courts  have  been  led 
into  error  by  following  federal  decisions  construing 
the  Federal  Safety  Appliance  Act.    Such  decisions 

100.  Colasurdo  v.  Central  E.  Co.  of  New  Jersey,  180  Fed.  832, 
affirmed  in  192  Fed.  901;  Pedersen  v.  Delaware,  L.  &  W.  E.  Co.,  229 
U.  S.  146,  57  L.  Ed.  1125,  6  N.  C.  C.  A.  198n,  924n,  Ann.  Cas. 
1914  C  153n. 


118        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

may  or  may  not  be  applicable,  depending  altogether 
whether  they  were  construing  that  act  as  it  was  be- 
fore the  amendment  of  1903  or  since.  Prior  to  the 
1903  amendment  to  the  Safety  Appliance  Act,  it  was 
necessary  for  the  plaintiff  to  prove  in  order  to  re- 
cover for  an  injury  due  to  a  violation  of  that  law, 
that  the  car  having  a  defect,  was  at  the  time  of  the 
injury  ''hauled  or  permitted  to  be  hauled  or  used 
on  its  line  in  moving  interstate  traffic."  Decisions 
construing  the  act  as  it  thus  read  would  no  doubt 
throw  light  on  some  questions  under  the  liability  act. 
But  since  the  amendment  of  1903,  the  Federal  Safety 
Appliance  Act  is  very  much  broader  than  the  Em- 
ployers' Liability  Act  for  by  that  amendment  every 
interstate  railroad  is  required  to  equip  all  its  cars 
as  provided  by  the  safety  act  whether  used  in  intra- 
state or  interstate  commerce.  This  broad  exercise 
of  power  extending  the  Safety  Appliance  Act  to  all 
cars  on  interstate  highways  by  railroad  has  been 
sustained  by  the  national  Supreme  Court.^  As  prac- 
tically all  railroads  in  the  United  States  are  inter- 
state highways,  the  Safety  Appliance  Act  applies  to 
all  cars  on  such  railroads.  The  decision  cited  in  the 
notes  holding  that  even  cars  used  in  intrastate  com- 
merce are  included  within  the  provisions  of  the 
Safety  Appliance  Act  has  sometimes  been  cited  as 
throwing  light  on  the  proposition  as  to  when  an 
employe  is  engaged  in  interstate  commerce  under 
the  Federal  Employers'   Liability  Act.    Such   de- 

1.  Southern  Ey.  Co.  v.  United  States,  222  U.  S.  20,  56  L.  Ed.  72, 
3  N.  C.  C.  A.  822 ;  Southern  Ry.  Co.  v.  Crockett,  234  U.  S.  725,  58  L. 
Ed.  1564,  6  N.  C.  C.  A.  94n;  Stearns  v.  Chicago,  K.  I.  &  P.  Ey.  Co., 
—  Iowa  — ,  148  N.  W.  128. 


EMPLOYES   WITHIN   THE   ACT  119 

cisions  are  not  applicable  for  if  an  employe  is  in- 
jured while  working  on  cars  hauling  only  intrastate 
traffic  on  an  interstate  railroad  due  to  any  violation 
of  the  Federal  Safety  Appliance  Act,  he  has  his 
remedy  under  that  statute  although  he  was  not  en- 
gaged at  the  time  in  interstate  commerce.^ 

§  51.  When  Questions  of  Employment  in  Interstate 
Commerce  Should  Be  Submitted  to  Jury. — Where, 
under  all  the  evidence  in  the  case,  any  essential  mat- 
ter bearing  on  the  question  of  whether  the  employe 
was  at  the  time  of  the  injury  engaged  in  interstate 
commerce,  is  in  doubt,  the  question  should  be  sub- 
mitted to  the  jury  under  proper  instructions.^  In  an 
action  for  damages  under  the  federal  act  the  plaintiff 
may  state  a  cause  of  action  under  one  count  under 
the  state  law  and  in  another  count  under  the  federal 
act  and  if  the  evidence  is  such  at  the  close  of  the 
introduction  of  the  testimony  that  it  is  doubtful  in 
which  commerce  he  was  engaged,  it  becomes  a  mixed 
question  of  law  and  fact  to  be  submitted  to  the  jury 
under  proper  instructions.^  But  the  Supreme  Court 
of  Oregon  held  that  it  was  error  to  submit  to  the 
jury  whether  the  common  law,  state  law  or  federal 
act,  applied.^ 

2.  Southern  Ry.  Co.  v.  United  States,  222  U.  S.  20,  56  L.  Ed.  72, 
3  N.  C.  C.  A.  822. 

3.  North  Carolina  R.  Co.  v.  Zachary,  232  U.  &'.  248,  58  L.  Ed.  591, 
6  N.  C.  C.  A.  194n,  Ann.  Cas.  1914  C  159n,  reversing  same  case  on 
other  grounds  reported  in  156  N.  C.  496;  accord,  Southern  P.  Ry. 
Co.  V.  Vaughan,  —  Tex.  Civ.  App.  — ,  165  S.  W.  885. 

4.  Atkinson  v.  Bullard,  —  Ga.  App.  — ,  6  N.  C.  C.  A.  80n,  183n, 
80  S.  E.  220.     See  §  172,  infra. 

5.  OberUn  v.  Oregon  W,  R.  N.  Co.,  —  Ore.  — ,  6  N,  C.  C.  A.  75n,  79n, 
95n,  188n,  142  Pac.  554. 


120        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

If  it  appears  at  the  close  of  the  evidence  as  a  mat- 
ter of  law  which  statute  applies,  no  doubt  it  would 
be  error  to  submit  the  question  to  the  jury  as  the 
court  should  pass  on  all  questions  of  law;  but  if  the 
evidence  is  such  that  reasonable  men  could  draw  dif- 
ferent conclusions  as  to  whether  the  defendant  and 
the  injured  employe  were  engaged  in  intrastate  com- 
merce or  interstate  commerce,  then  it  would  be  error 
for  the  court  to  decide  that  issue  as  all  questions  of 
facts  should  be  submitted  to  the  jury  under  proper 
charges  declaring  the  law  applicable.  The  conflict 
between  the  decisions  cited  is  more  apparent  than 
real.^ 

6.  Patry  v.  Chicago  &  W.  I.  Ey.  Co.,  —  HI.  — ,  106  N.  E.  105, 
reversing  same  case  reported  in  185  HI.  App.  361;  Atchison,  T.  &  S. 
F.  Ey.  Co.  V.  Pitts,  —  Okla.  — ,  145  Pac.  1148. 


CHAPTER  IV 

RAILROADS   INCLUDED   WITHIN   THE   FED- 
ERAL ACT 

§  52.  General  R«le  as  to  When  Eailroad  Companies  Are  Engaged  in 
Interstate  and  Foreign  Commerce. 

§  53.  Railroads  Within  the  Act  Defined. 

§  54.  Eailroad  Must  Be  a  Common  Carrier — Tap  Lines  and  Logging 
Roads. 

§  55.  Proof  That  Injured  Servant  Is  Employed  in  Interstate  Com- 
merce Sufficient  to  Show  That  the  Railroad  Is  So  Engaged. 

§  56.  Receivers  of   Railroad   Corporations   Included  Within   the   Act. 

§  57.  Lessor  of  Railroad  Engaged  in  Interstate  Commerce  Liable, 
When. 

§  58.  Interurban  Electric  Railroads  Included  Within  the  Act. 

§  59.  Railroads  Carrying  Passengers  and  No  Freight. 

§  60.  Ships  or  Vessels  Not  a  Part  of  a  Railroad  System. 

§  61.  Street  Railroads  Not  Within  the  Terms  of  the  National  Act. 

§  62.  Hauling  Empty  Cars  or  Company  Pi-operty  Over  State  Line. 

§  63.  Instances  Showing  Engagement  by  Railroad  Companies  in  Inter- 
state Commerce. 

§  64.  Beginning  and  Ending  of  Interstate  Character  of  Shipments. 

§  65.  Intermediate  Carrier  with  Line  Wholly  in  One  State  Partici- 
pating in  Movement  of  Interstate  Shipments. 

§  66.  Sliipments  Between  Two  Points  in  Same  State  Passing  Through 
Another  State  in  Transit. 

§  67.  Eailroad  lines  Confined  Within  Limits  of  a  Single  State 
Engaged  in  Interstate  Commerce  When  Transporting  Through 
Shipments  To  or  From  Another  State. 

§  68.  When  Reshipment  from  Point  of  Delivery  Changes  Interstate 
Character  of  Traffic. 

§  69.  When  Reshipment  from  Point  of  Delivery  Does  Not  Change  In- 
terstate Character  of  Traffic. 

§  70.  All  Carriers  by  Railroad  and  All  Their  Employes  Within  Terri- 
tories Included. 

§52.  General  Rule  as  to  When  Railroad  Com- 
panies Are  Engaged  in  Interstate  and  Foreign  Com- 

121 


122        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

merce. — If  a  common  carrier  by  railroad  transports 
passengers,  freight,  express,  baggage  or  other  mer- 
chandise from  one  state  in  the  United  States  to  an- 
other, or  from  a  state  or  territory  to  a  territory  or 
vice  versa,  or  from  the  District  of  Columbia  to  a 
state  or  territory  or  vice  versa,  or  from  a  state  or  ter- 
ritory to  a  foreign  nation  or  vice  versa,  the  carrier 
is  engaged  in  interstate  commerce  or  foreign  com- 
merce within  the  meaning  of  the  Federal  Employers' 
Liability  Act.  Carriers  engaged  in  foreign  com- 
merce while  within  the  boundary  of  the  United 
States  are  included  in  the  act  as  well  as  carriers 
engaged  in  interstate  commerce. 

§53.  Railroads  Within  the  Act  Defined.— The 
Federal  Employers'  Liability  Act  is  confined  solely 
to  common  carriers  engaged  in  interstate  commerce 
by  railroad.  The  Hepburn  Amendment  of  1906  to 
the  Interstate  Commerce  Act  (Act  June  20,  1906, 
c.  3591,  34  Stat.  584  [Fed.  Stat.  Aim.  1909  Supp. 
p.  255] )  provides  that  a  railroad,  as  used  in  that  act, 
shall  include  "all  bridges  and  ferries  used  or  oper- 
ated in  connection  with  any  railroad,  and  also  all  the 
road  in  use  by  any  corporation  operating  a  railroad, 
whether  owned  or  operated  under  a  contract,  agree- 
ment, or  lease,  and  shall  also  include  all  switches, 
spurs,  tracks,  and  terminal  facilities  of  every  kind 
used  or  necessary  in  the  transportation  or  delivery 
of  any  of  said  property."  It  would  seem  that  this 
definition  following  the  application  of  analogous 
principles  by  the  courts  in  other  cases,  would  apply 
in  construing  what  is  or  is  not  a  railroad  within  the 


RAILROADS   WITHIN   THE   ACT  123 

meaning  of  the  national  act  though  the  question  has 
not  apparently  been  directly  passed  upon. 

The  Federal  Circuit  Court  of  Appeals  for  the  sixth 
circuit  in  1904,  construing  the  Safety  Appliance  Act 
decided  that  the  Interstate  Commerce  Act  and  the 
Safety  Appliance  Act  were  in  pari  materia  so  that 
the  definition  of  a  railroad  given  in  the  former  con- 
trolled in  construing  the  latter.  ^  After  the  passage 
of  the  Hepburn  Amendment,  which  defined  a  rail- 
road within  the  meaning  of  the  Interstate  Commerce 
Act  as  quoted  herein,  it  was  held  in  another  case 
that  this  definition  of  a  railroad  governed  in  con- 
struing what  was  a  railroad  under  the  Safety  Ap- 
pliance Act  and  the  court  decided  that  a  private 
switch  leading  to  a  mill  used  by  a  railroad  company 
in  transporting  cars  in  interstate  commerce  to  and 
from  the  mill  as  they  were  consigned,  with  the  rail- 
road's own  engines  and  cars  constituted  a  "rail- 
road" within  the  meaning  of  the  Safety  Appliance 
Act.2 

§  54.  Railroad  Must  Be  a  Common  Carrier— Tap 
Lines  and  Logging  Roads. — In  order  to  recover  un- 
der the  national  act,  the  injured  employe  must  not 
only  show  that  the  defendant  owned  or  operated  a 
railroad,  but  he  must  further  show  that  such  rail- 
road is  operated  as  a  common  carrier.^    A  common 

1.  United  States  v.  Geddes,  65  C.  C.  A.  320,  131  Fed.  452. 

2.  Gray  v.  LouisvUle  &  N.  E,  Co.,  197  Fed.  874,  4  N.  C.  C.  A.  484n. 

3.  Second  Employers'  Liability  Cases,  223  U.  S.  1,  56  L.  Ed.  327, 
1  N.  C.  C.  A.  875,  38  L.  R.  A.  (N.  S.)  44;  Pedersen  v.  Delaware, 
L.  &  W.  Ey.  Co.,  229  U.  S.  146,  57  L.  Ed.  1125,  6  N.  C.  C.  A.  198n, 
924n,  Ann.  Cas.  1914  C  153n;  Bay  v.  Merrill  &  Eing  Lumber  Co.,  211 
Fed.  717. 


124        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

carrier  is  one  who  undertakes  to  transport  for  hire 
from  one  place  to  another,  passengers  or  goods  of 
such  as  choose  to  employ  him."*  A  company  owned 
a  tract  of  timber  land  which  it  was  engaged  in  log- 
ging and  also  owned  a  railroad  on  which  it  trans- 
ported its  logs  from  the  woods  to  Puget  Sound, 
eighty  per  cent  of  the  output  being  shipped  to  other 
states  or  countries.  The  company's  articles  of  in- 
corporation authorized  it  to  do  business  as  a  com- 
mon carrier;  but  in  fact  the  services  rendered  on 
its  road  had  all  been  private  and  only  for  the  pur- 
pose of  carrying  the  logs  to  the  Sound.  The  court 
held  that  the  transportation  of  the  logs  did  not  con- 
stitute interstate  commerce  within  the  rule  that  a 
commodity  is  not  engaged  in  interstate  commerce 
until  it  is  entered  on  its  final  passage  to  another 
state  or  foreign  country  and  hence  the  company  was 
not  liable  under  the  Federal  Employers'  Liability 
Act.5 

Shortly  after  this  decision  was  handed  down  on 
February  20,  1914,  the  Supreme  Court  of  the  United 
States  in  May,  1914,  decided  the  tap  line  cases.^  In 
those  cases,  the  question  was  whether  certain  log- 

4.  Nordgard  v.  Marysville  &  N.  Ry.  Co.,  211  Fed.  721,  6  N.  C.  C.  A. 
207n,  affirmed  in  218  Fed.  (0.  C.  A.)  737,  Judge  Eoss  dissenting  on 
the  proposition  as  to  whether  the  railroad  was  a  common  carrier; 
2  Words  &  Phrases,  1312;  Jackson,  etc..  Iron  Works  v.  Hurlbut, 
158  N.  Y.  34,  70  Am.  St.  Eep.  432 ;  Fort  Worth  B.  Ey.  Co.  v.  Perry- 
man,  —  Tex.  Civ.  App.  — ,  6  N.  C.  C.  A.  204n,  158  S.  W.  1181. 

5.  Bay  v.  MerriU  &  Eing  Lumber  Co.,  211  Fed.  717;  Nordgard  v. 
MarysviUe  &  N.  Ey.  Co.,  211  Fed.  721,  6  N.  C.  C.  A.  207n;  the  Daniel 
BaU  Case,  10  Wall.  (U.  S.)  557,  19  L.  Ed.  999;  Coe  v.  Errol,  116  U.  S. 
517,  525,  29  L.  Ed.  715. 

%  Atchison,  T.  &  S.  F.  E.  Co.  v.  Victoria,  F,  &  W.  E.  Co.,  234  U.  S. 
i,  58  L.  Ed.  1185. 


RAILEOADS   WITHIN   THE   ACT  125 

ging  railroads  in  Louisiana  were  common  carriers  by 
railroad  or  were  mere  ''plant  facilities"  as  that 
doctrine  has  been  expounded  by  the  Interstate  Com- 
merce Commission  and  the  courts.  The  proof  was 
different  from  that  in  the  Bay  case,  supra,  as  the 
evidence  disclosed  that  these  roads  held  themselves 
out  as  common  carriers  to  some  extent  though  most 
of  the  traffic  consisted  of  the  logs  and  timbers  be- 
longing to  the  owners  of  the  roads.  The  Supreme 
Court  held  that  they  were  common  cari'iers  by  rail- 
road and  that  the  extent  to  which  a  railroad  is  in 
fact  used  by  the  public  does  not  determine  whether 
it  is  a  common  carrier,  but  the  right  of  the  public  to 
demand  services  of  it  is  the  criterion  to  determine 
whether  the  roads  were  plant  facilities  or  common 
carriers.  Aii  order  of  the  Interstate  Commerce  Com- 
mission prohibiting  these  tap  lines  from  sharing  in 
rates  on  commodities  shipped  over  them  on  the 
ground  that  they  were  not  common  carriers,  was  set 
aside. 

§  55.  Proof  That  Injured  Servant  Is  Employed  in 
Interstate  Commerce  Sufficient  to  Show  That  the 
Railroad  Is  So  Engaged. — To  permit  an  employe  to 
recover  under  the  federal  act,  it  must  be  shown  that 
at  the  time  of  the  accident,  first,  the  carrier  was  en- 
gaged in  interstate  commerce  and,  second,  that  the 
injured  servant  was  employed  by  it  in  such  com- 
merce- Since  the  act  of  a  seri^ant  within  the  scope 
of  his  employment  is  in  legal  contemplation  the  act 
of  the  master,  if  it  is  shown  that  the  injured  employe 
at  the  time  of  the  accident  was  engaged  in  interstate 
commerce  by  virtue  of  his  employment  on  the  rail- 


126        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

road,  then  it  necessarily  follows  that  the  carrier  is 
so  engaged.  Hence  in  an  action  under  the  act,  evi- 
dence that  the  employe  was  employed  in  such  com- 
merce at  the  time  of  the  accident  is  sufficient  to  show 
that  the  carrier  was  so  engaged. 

But  the  converse  of  the  proposition  stated  is  not 
true,  for  proof  that  the  carrier  at  the  time  of  the 
injury  was  engaged  generally  in  interstate  com- 
merce, does  not  prove  that  the  injured  servant  was 
also  employed  by  it  in  such  commerce  unless  the 
specie  of  evidence  introduced  to  show  the  carrier 
was  so  engaged,  is  the  act  and  work  of  the  servant 
when  injured.  Since,  therefore,  by  virtue  of  a  well- 
known  principle  in  the  law  of  agency  the  act  of 
servant  is  the  act  of  master,  decisions  of  the  courts 
construing  when  an  employe  is  engaged  in  interstate 
commerce,  are  quite  applicable  under  questions  dis- 
cussed in  this  chapter  and  opinions  there  cited  are 
relevant  here.''' 

§  56.  Receivers  of  Railroad  Corporations  Included 
Within  the  Act. — It  is  provided  in  §  7  of  the 
federal  act  that  the  term  "common  carrier"  in  the 
first  section  of  the  act  shall  include  the  receiver  or 
receivers  or  other  persons  or  corporations  charged 
with  the  management  and  operation  of  the  business 
of  a  common  carrier.  Courts  have  both  affirmed  * 
and  denied  ^  the  proposition  that  it  is  necessary  for 
the  plaintiff  to  show  by  proof  that  the  receiver  has 

7.  Colasurdo  v.  Central  E.  Co.  of  New  Jersey,  180  Fed.  832,  affirmed 
in  113  C.  C.  A.  379,  192  Fed.  901. 

8.  Hudkins  v.  Bush,  69  W.  Va.  194,  Ann.  Cas.  1913  A  533n. 

9.  McNulta  V.  Ensch,  134  lU.  46;  McNulta  v.  Lockridge,  137  lU. 
270,  31  Am.  St.  Eep.  362,  aflf'g  32  111.  App.  86. 


RAILROADS   WITHIN   THE   ACT  127 

been  duly  appointed,  is  in  charge  of  and  has  author- 
ity to  operate  the  railroad.  In  view  of  this  conflict 
the  ''safety  first"  propaganda  as  applied  to  legal 
procedure  would  seem  to  suggest  to  the  careful  prac- 
titioner, if  representing  the  plaintiff,  that  he  obtain 
a  certified  copy  of  the  receiver's  appointment  and 
authority  and  offer  it  in  evidence. 

§57.  Lessor  of  Railroad  Engaged  in  Interstate 
Commerce  Liable,  When. — If,  under  the  laws  of  the 
state,  the  lessor  of  a  railroad  remains  responsible  for 
the  acts  of  the  lessee  as  is  provided  by  the  statutes 
of  several  states,  a  railroad  company  which  leases 
its  entire  line  to  another  railroad  company  doing  an 
interstate  business,  creates  the  lessee  its  agent  and 
the  lessor  is  a  common  carrier  by  railroad  engaging 
in  interstate  commerce,  and  the  federal  act  controls 
as  to  its  liability  for  injuries  to  employes  of  the 
lessee  engaged  in  interstate  commerce.  This  is  true 
even  though  the  railroad  leased  is  confined  within 
the  boundaries  of  one  state.  Both  such  companies, 
while  the  lessee  is  engaged  in  interstate  commerce, 
are  within  the  terms  of  the  national  statute.^" 

In  the  Zachary  case,  cited,  the  deceased  locomo- 
tive fireman  was  an  employe  of  the  Southern  Rail- 
way Company,  the  lessee  of  the  defendant  in  the 
case.  The  lessor's  activity  in  the  operation  of  the 
railroad  was  confined  solely  to  receiving  annual  rents 
from  the  Southern  Railway  Company  and  distrib- 

10.  North  Carolina  R.  Co.  v.  Zachary,  232  U.  S.  248,  58  L.  Ed.  591, 
6  N.  C.  C.  A.  194n,  Ann.  Cas.  1914  C  159n;  Copper  River  &  N.  W. 
Ry.  Co.  V.  Heney  (C,  C.  A.),  211  Fed.  459;  Nordgard  v.  Marysville 
&  N.  Ry.  Co.,  211  Fed.  721,  6  N.  C.  C.  A.  207n;  Campbell  v.  Canadian 
N.  Ry.  Co.,  —  Minn.  — ,  4  N.  C.  C.  A.  216n,  217n,  144  N.  W.  772. 


128        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

uting  them  among  its  stockholders.  The  state  law 
of  North  Carolina  provided  that  the  lessor  of  a  rail- 
road, notwithstanding  the  lease,  was  liable  for  all  of 
the  lessee's  acts  of  commission  and  omission  in  oper- 
ating the  road,  although  the  lessor  was  not  actually 
engaged  in  either.  Construing  such  leases  under  the 
Federal  Employers'  Liability  Act,  the  court  said: 
''It  is  plain  enough,  however,  that  the  effect  of  the 
rule  thus  laid  down,  especially  in  view  of  the  grounds 
upon  which  it  is  based,  is,  that  although  a  railroad 
lease  as  between  the  parties  may  have  the  force  and 
effect  of  an  ordinary  lease,  yet  with  respect  to  the 
railroad  operations  conducted  under  it,  and  everj^- 
thing  that  relates  to  the  performance  of  the  public 
duties  assumed  by  the  lessor  under  its  charter,  such  a 
lease — certainly  so  far  as  concerns  the  rights  of 
third  parties,  including  employes  as  well  as  patrons 
— constitutes  the  lessee  the  lessor's  substitute  or 
agent,  so  that  for  whatever  the  lessee  does  or  fails 
to  do,  whether  in  interstate  or  intrastate  commerce, 
the  lessor  is  responsible.  This  being  the  legal  situa- 
tion under  the  local  law,  it  seems  to  us  that  it  must 
and  does  result,  in  the  case  before  us,  that  the  lessor 
is  a  'common  carrier  by  railroad  engaging  in  com- 
merce between  the  states, '  and  that  the  deceased  was 
'  employed  by  such  carrier  in  such  commerce, '  within 
the  meaning  of  the  federal  act;  provided,  of  course, 
he  was  employed  by  the  lessee  in  such  commerce  at 
the  time  he  was  killed." 

But  the  Supreme  Court  of  Illinois  held,  in  a  case 
decided  ten  months  after  the  opinion  in  the  Zachary 
case  was  delivered,  that  under  the  federal  act  the 


RAILROADS   WITHIN   THE   ACT  129 

owner  of  a  railroad  track  was  not  liable  to  an  em- 
ploye of  a  licensee  of  the  same  track,  both  being 
engaged  in  interstate  commerce,  for  the  reason  that 
the  relation  of  master  and  servant  did  not  exist  be- 
tween the  employe  of  the  licensee  and  the  owner 
of  the  track.  ^^  In  the  Wagner  case.  A,  a  railroad 
company  and  the  defendant  in  the  case,  owned  a 
Y-track  which  was  a  part  of  its  tracks  on  a  certain 
street  in  Chicago.  This  Y-track  ran  northeast  and 
connected  at  one  end  with  the  tracks  belonging  to 
B  and  at  the  other  end  with  tracks  belonging  to  C. 
Alongside  of  the  Y-track  and  on  A's  property  was  a 
semaphore  post  16  feet  high  which  however  was 
erected  by  and  belonged  to  0.  The  plaintiff,  a  con- 
ductor in  charge  of  a  switching  crew,  was  an  em- 
ploye of  D.  At  the  time  of  his  injury  he  was  assist- 
ing in  the  movement  of  interstate  cars  and  was  hang- 
ing on  the  side  of  a  car  on  the  Y-track  when  owing 
to  its  close  proximity,  he  was  struck  by  the  sema- 
phore post  and  was  severely  injured.  D  company 
used  the  Y-track  and  had  been  using  it  for  several 
years  to  transfer  its  cars  and  to  make  deliveries  to 
other  companies.  The  track  was  used  by  D  with 
the  consent  of  A  and  nearly  every  month  D  had  re- 
ceived a  bill  from  A  for  the  use  of  this  track  and 
regularly  paid  the  same.  The  semaphore  post  had 
been  in  the  same  place  for  several  years.  While  on 
A's  property  and  close  to  the  Y-track  on  which 
plaintiff  was  injured,  the  post  was  not  maintained 

11.  Wagner  v.  Chicago  &  A.  B.  Co.,  —  111.  — ,  106  N.  E.  809,  de- 
cided December  2,  1914.     All  of  the  judges  in  this  case  concurred  in 
the  raling  but  two  judges  dissented  on  another  point. 
Roberts  Liabilities — 9 


130        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

or  controlled  by  A  or  D  but  by  C  whose  tracks  con- 
nected with  the  Y-track  at  one  end.  Although  the 
semaphore  was  not  erected  or  maintained  by  it,  the 
court  held  that  A  was  liable  if  it  permitted  it  to 
negligently  remain  there;  that  A  and  D  were  joint 
tort-feasors  and  that  A  was  negligent  in  permitting 
the  operation  of  trains  by  its  licensee  D  over  the 
track.  On  the  question  of  A's  liability,  being  the 
sole  defendant,  under  the  Federal  Employers'  Lia- 
bility Act  to  the  plaintiff,  the  employe  of  D,  the 
court  said:  "Defendant  in  error  had  no  cause  of 
action  against  plaintiff  in  error  under  the  Federal 
Employers'  Liability  Act,  as  that  act  applies  only 
where  the  relation  of  master  and  servant  exists. ' ' 

§  58.  Interurban  Electric  Railroads  Included 
Within  the  Act. — Interurban  electric  railroad  com- 
panies carrying  passengers,  express  or  freight  from 
one  state  to  another  are  included  within  the  terms 
of  the  Federal  Employers'  Liability  Act.  An  inter- 
urban electric  railway  company  which  operated  a 
line  from  a  point  in  Kansas  to  a  point  in  Missouri 
was  engaged  in  interstate  commerce  although  after 
reaching  Kansas  City,  Kansas,  and  then  into  Kansas 
City,  Missouri,  a  street  car  company  furnished  the 
electric  power  and  the  conductor,  and  the  interur- 
ban company,  the  motorman,  and  the  cars  were  nin 
over  the  tracks  of  the  street  railway  company. ^^ 

§  59.  Railroads  Carrying  Passengers  and  No 
Freight. — Although  a  common  carrier  by  railroad 
carries  only  passengers  from  one  state  to  another 

12.  McAdow  V.  Kansas  City  W.  Ey,  Co.,  —  Mo.  App.  — ,  6  N.  C, 
C.  A.  76n,  206n,  233n,  164  S.  W.  188. 


RAILROADS    WITHIN    THE   ACT  131 

and  handles  no  freight,  it  is  nevertheless  engaged  in 
interstate  commerce  within  the  terms  of  the  federal 
act.i3 

§  60.  Ships  or  Vessels  Not  a  Part  of  a  Railroad 
System.— While  the  first  section  of  the  Act  of  1908 
includes  a  railroad  company's  boats  used  in  inter- 
state commerce  and  makes  it  liable  for  defects  or 
insufficiencies  in  such  boats,  due  to  negligence,  caus- 
ing injuries  to  its  employes  while  employed  in  such 
commerce,  yet  the  federal  statute  does  not  apply  to 
a  vessel  not  a  part  of  a  railroad  system. ^^  On  the 
other  hand  a  ferryboat  used  by  a  railroad  company 
in  the  transportation  of  freight  and  passengers  from 
Jersey  City  across  the  river  to  New  York  state,  is 
used  in  interstate  commerce  within  the  meaning  of 
the  federal  statute.  ^^  In  the  last  case  cited  the  court 
also  held  that  the  Federal  Employers'  Liability  Act 
did  not  by  implication  repeal  the  federal  statutory 
provision  permitting  shipowners  to  limit  the  liabil- 
ity as  applied  to  actions  for  injuries  to  employes  on 
a  vessel  operated  by  a  railroad  company  as  a  part 
of  its  interstate  line.^^  It  was  also  held  by  the  court 
in  that  case  that  a  company  could  maintain  proceed- 
ings for  such  limitation  in  a  court  of  admiralty. 

§  61.  Street  Railroads  Not  Within  the  Terms  of 
the  National  Act. — Street  railways  which  transport 
passengers  or  freight  across  state  lines  or  from  one 
state  to  another,  are  not  included  within  the  terms 

13.  Washington  Ey.  Co.  v.  Downey,  40  App.  Cas.   (D.  C.)  147. 

14.  The  Pawnee,  205  Fed.  33. 

15.  The  Passaic,  190  Fed.  644,  affinned  in  122  C.  C.  A.  466,  204 
Fed.  266. 

16.  Section  4283  K.  S.  (4  Fed.  Stat.  Ann.,  p.  839). 


132        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

of  the  act  for  the  statute  mentions  only  common  car- 
riers "by  railroad"  and  the  United  States  Supreme 
Court  has  defined  the  term  ' '  railroad ' '  by  interpreta- 
tion as  not  including  street  railroads."  The  same 
conclusion  was  reached  by  the  Kansas  City  Court  of 
Appeals  in  a  case  brought  under  the  Federal  Em- 
ployers' Liability  Act.^^  In  the  case  cited  before 
the  United  States  Supreme  Court,  counsel  for  appel- 
lant cited  decisions  from  twelve  states,  holding  that 
in  a  statute  the  word  ''railroad"  did  not  mean 
''street  railroads"  and  the  counsel  for  defendant 
cited  decisions  to  the  contrary  from  an  equal  num- 
ber of  states.  A  similar  disagreement  was  shown  in 
the  briefs  in  federal  tribunals.  Speaking  of  this 
conflict  among  the  decisions  of  the  various  courts, 
Justice  Lamar,  speaking  for  the  court  said :  ' '  This 
conflict  is  not  so  great  as  at  first  blush  would  appear. 
For  all  recognize  that  while  there  is  similarity  be- 
tween railroads  and  street  railroads,  there  is  also  a 
difference.  Some  courts,  emphasizing  the  similarity, 
hold  that  in  statutes  the  word  railroad  includes 
street  railroad,  unless  the  contrary  is  required  by 
the  context.  Others,  emphasizing  the  dissimilarity, 
hold  that  railroad  does  not  include  street  railroad 
unless  required  by  the  context,  since,  as  tersely  put 
by  the  Court  of  Appeals  of  Kentucky,  '  a  street  rail- 
road, in  a  technical  and  popular  sense,  is  as  different 

17.  Omaha  &  C.  B.  S.  Ey.  Co.  and  Omaha  &  C.  B.  Ey.  &  B.  Co.  v. 
Interstate  Commerce  Commission  and  United  States,  230  XJ.  S,  324, 
57  L.  Ed.  1501,  46  L.  E.  A.  (N.  S.)  385n,  reversing  the  same  case  re- 
ported in  191  Fed.  40,  179  Fed.  243,  17  Interst.  Com.  Com'n  E.,  239. 

18.  J^IcAdow  V.  Kansas  City  W.  Ey.  Co.,  —  Mo.  App.  — ,  6  N.  C. 
C.  A.  76n,  206n,  233n,  164  S.  W.  188. 


RAILROADS   WITHIN   THE   ACT  133 

from  an  ordinary  railroad  as  a  street  is  from  a  road. ' 
Louisville  &  P.  R.  Co.  v.  Louisville  City  R.  Co.,  2 
Duv.  (Ky.)  175.  But  all  tlie  decisions  hold  that  the 
meaning  of  the  word  is  to  be  determined  by  con- 
struing the  statute  as  a  whole.  If  the  scope  of  the 
act  is  such  as  to  show  that  both  classes  of  companies 
were  within  the  legislative  contemplation,  then  the 
word  'railroad'  will  include  street  railroad.  On  the 
other  hand,  if  the  act  was  aimed  at  railroads  proper, 
then  street  railroads  are  excluded  from  the  pro- 
visions of  the  statute.  Applying  this  universally 
accepted  rule  of  construing  this  word,  it  is  to  be 
noted  that  ordinary  railroads  are  constructed  on 
the, companies'  own  property.  The  tracks  extend 
from  town  to  town,  and  are  usually  connected  with 
other  railroads,  which  themselves  are  further  con- 
nected with  others,  so  that  freight  may  be  shipped, 
without  breaking  bulk,  across  the  continent.  Such 
railroads  are  channels  of  interstate  commerce." 

§  62.  Hauling  Empty  Cars  or  Company  Property 
Over  State  Line. — A  common  carrier  by  railroad 
while  transporting  empty  cars  or  cars  containing 
only  property  owned  by  the  railroad  company  from 
one  state  to  another  is  engaged  in  interstate  com- 
merce within  the  meaning  of  the  national  statute.  ^^ 

§  63.  Instances  Showing  Engagement  by  Railroad 
Companies    in    Interstate    Commerce. — A    common 

19.  North  Carolina  E.  Co.  v.  Zaehary,  232  U.  S.  248,  58  L.  Ed.  591, 
6  N.  C.  C.  A.  194n,  Ann.  Cas.  1914  C  159n;  United  States  v.  Chicago, 
M.  &  St.  P.  Ry.  Co.,  149  Fed.  486;  Barker  v.  Kansas  City,  M.  &  O. 
Ey.  Co.,  88  Kan.  767,  43  L.  E.  A.  (N.  S.)  1121;  Kansas  City  E.  Co. 
V.  Cook,  100  Ark.  467;  Thompson  v.  Wabash  E.  Co.,  —  Mo.  — ,  171 
S.  W.  364. 


134        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

carrier  by  railroad  was  held  to  be  engaged  in  inter- 
state commerce,  through  its  ser\^ant,  a  car  repairer, 
while  he  was  repairing  a  car  used  indiscriminately 
in  both  interstate  and  intrastate  commerce  in  a  re- 
pair shop  of  the  railroad  company.^*^  In  making  a 
shipment  from  a  point  in  one  state  to  a  point  in  an- 
other state  over  a  line  which  passed  through  another 
state  the  company  was  engaged  in  interstate  com- 
merce although  the  point  of  origin  and  jDoint  of 
destination  was  in  the  same  state.^^  A  car  marked 
''in  bad  order"  and  containing  an  interstate  ship- 
ment was  placed  upon  a  repair  track  in  a  terminal 
yard  of  a  railroad  company  at  the  destination  point 
for  the  purpose  of  having  repairs  made.  While  on 
such  a  track,  it  was  held,  that  the  i^ilroad  company 
was  engaged  in  interstate  commerce  through  one  of 
its  servants  who  was  injured  while  attempting  to 
couple  the  defective  car  to  another  car  under  the 
direction  of  his  foreman. -^ 

§  64.  Beginning  and  Ending  of  Interstate  Charac- 
ter of  Shipments. — From  the  moment  that  a  ship- 
ment for  a  point  in  another  state  is  delivered  to  and 
accepted  by  a  railroad  company,  that  carrier  is  en- 
gaged in  interstate  commerce  during  the  entire 
period  from  the  time  of  acceptance  at  point  of  origin 
until  the  shipment  is  finally  delivered  to  and  ac- 
cepted by  the  consignee  at  point  of  destination.^^ 

20.  Northern  P.  E.  Co.  v.  Maerkl,  117  C.  C.  A.  237,  198  Fed.  1. 

21.  LouisvUle  &  N.  Ry.  Co.  v.  Allen,  152  Ky.  145 ;  s.  c,  152  Ky.  837. 

22.  Delk  V.  St.  Louis  &  S.  F.  E.  Co.,  220  U.  S.  580,  55  L.  Ed.  590, 
4  N.  C.  C.  A.  488n. 

23.  McNeil  v.  Southern  Ry.  Co.,  202  U.  S.  543,  50  L.  Ed.  1142; 
Chicago,  R.  I.  &  P.  R.  Co.,  v.  Hardwick  Farmers  Elevator  Co.,  226 


RAILROADS   WITHIN   THE   ACT  135 

§65.  Intermediate  Carrier  with  Line  Wholly  in 
One  State  Participating  in  Movement  of  Interstate 
Shipments. — If  any  common  carrier  by  railroad  par- 
ticipates to  any  extent  in  moving  traffic  originating 
from  a  point  in  one  state  or  territory  or  the  District 
of  Columbia  and  destined  to  a  point  in  another  state 
or  territory,  the  carrier  so  participating,  is  engaged 
in  interstate  commerce,  although  its  line  is  confined 
between  two  points  in  the  same  state  and  although 
it  only  receives  a  division  under  a  joint  rate  of  trans- 
portation for  its  services.  In  other  words,  any  rail- 
road that  carries  over  its  line  freight  billed  from  a 
point  in  one  state  to  a  point  in  another  as  a  part  of 
the  journey,  such  intermediate  carrier  is  engaged  in 
interstate  commerce  as  well  as  the  initial  and  final 
carrier  of  a  through  shipment. ^^ 

§  66.  Shipments  Between  Two  Points  in  Same 
State  Passing  Through  Another  State  in  Transit. — 
Although  a  shipment  is  made  from  a  point  in  one 
state  to  another  point  in  the  same  state,  yet  if  in 
being  transported  between  the  two  points  the  traffic 
is  carried  through  a  contiguous  state,  the  carrier  is 
engaged  in  interstate  commerce  and  such  shipments 
are    considered    interstate    shipments.     Conflicting 

U.  S.  426,  57  L.  Ed.  284,  46  L.  E.  A.  (N.  S.)  203;  Johnson  v.  Southern 
P.  Co.,  196  U.  S.  1,  49  L.  Ed.  363,  3  N.  C.  C.  A.  784,  802n,  829n; 
United  States  v.  Geddes,  65  C.  C.  A.  320,  131  Fed.  452;  United 
States  V.  Union  Stock  Yards  &  T.  Co.,  226  U.  S,  300,  57  L.  Ed.  232, 
affirming  on  this  point  decision  of  Court  of  Appeals  reported  in  192 
Fed.  330. 

24.  Interstate  Commerce  Commission  v.  Cincinnati,  N.  O.  &  T.  P. 
Ey.  Co.,  162  U.  S.  184,  40  L.  Ed.  935;  United  States  v.  Standard  Oil 
Co.,  155  Fed.  306;  Parsons  v.  Chicago  N.  W.  Ey.  Co.,  167  U.  S.  447, 
42  L.  Ed.  232. 


136        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

opinions  by  state  and  federal  courts  on  this  question 
had  been  rendered  but  the  final  and  supreme  author- 
ity on  such  matters,  the  United  States  Supreme 
Court,  decided  that  traffic  so  moved  was  interstate 
commerce.^^ 

§  67.  Railroad  Lines  Confined  Within  Limits  of  a 
Singie  State  Engaged  in  Interstate  Commerce  When 
Transporting  Through  Shipments  to  or  from  An- 
other State. — Although  a  railroad  line  of  a  company 
is  confined  wholly  within  the  limits  of  a  single  state, 
yet  if  such  a  carrier  accepts  freight  for  shipment  to 
or  from  another  state,  such  carrier  is  engaged  in 
interstate  commerce.  This  is  true  although  the  ship- 
ment is  made  without  any  common  control,  manage- 
ment or  arrangements  with  another  carrier  for  con- 
tinuous carriage  and  although  the  line  of  such  carrier 
does  not  pass  from  one  state  to  another.  Whether 
such  carriers,  operating  entirely  within  a  single  state 
and  transporting  articles  of  commerce  shipped  in 
continuous  passage  from  places  without  the  state  to 
stations  on  its  road,  or  from  stations  on  its  road  to 
points  without  the  state,  free  from  any  common  con- 
trol, management  or  arrangements  with  another  car- 
rier for  a  continuous  carriage  or  shipment,  are  en- 
gaged in  interstate  commerce,  has  been  both  denied 
and  affirmed  by  Federal  Circuit  Court  of  Appeals.^^ 

This  controversy  arose  largely  from  a  disagree- 
ment between  the  courts  in  interpreting  the  defini- 

25.  Hanley  v.  Kansas  City  S.  E.  Co.,  187  U.  S.  617,  47  L.  Ed.  333 ; 
Louisville  &  N.  Ey.  Co.  v.  Allen,  152  Ky.  145,  overruling  the  same  case 
reported  in  152  Ky.  837;  Deardorfle  v.  Chicago,  B.  &  Q.  E.  Co.,  — 
Mo.  — ,   172  S.  W.   333. 

26.  So  held  in  United  States  v.  Colorado  N.  W.  E.  Co.,  85  C.  C.  A. 


RAILROADS   WITHIN   THE   ACT  137 

tion  of  a  railroad  given  in  the  Interstate  Commerce 
Act  before  the  Hepburn  Amendment  of  1906.-'^  In 
the  Geddes  case,  cited  in  the  notes,  it  was  held  that 
the  phrase  "common  control,  management  or  ar- 
rangements" applied  to  carriers  wholly  by  railroad 
as  well  as  those  partly  by  railroad  and  partly  by 
water.  In  the  other  cases  cited  in  the  notes,  it  was 
held  that  the  phrase  quoted  only  applied  to  carriers 
partly  by  railroad  and  partly  by  water.  Which  of 
these  courts  was  correct  need  not  now  concern  a 
lawyer  bringing  a  suit  under  the  Federal  Employers' 
Liability  Act  for  the  reason  that  the  act  was 
amended  in  1906  so  that  the  clause  "under  a  common 
control,  management  or  arrangements"  now  quali- 
fies only  carriers  partly  by  a  railroad  and  partly  by 
water  and  has  no  application  to  carriers  wholly  by 
railroad.^^  The  decision  of  the  Federal  Circuit 
Court  of  Appeals  for  the  Eighth  Circuit  (United 
States  V.  Colorado  &  N.  W.  R.  Co.,  85  C.  C.  A.  27, 157 
Fed.  321, 15  L.  R.  A.  (N.  S.)  167n,  13  Ann.  Cas.  893), 

27,  157  Fed.  321,  15  L.  R.  A.  (N.  S.)  167n,  13  Ann.  Cas.  893;  United 
States  V.  Colorado  &  N.  W.  R.  Co.,  157  Fed.  342;  United  States  v. 
Union  Stockyard  &  Transit  Co.,  192  Fed.  330.  Denied  in  United 
States  V.  Geddes,  65  C.  C.  A.  320,  131  Fed.  452;  United  States  v. 
Geddes,  180  Fed.  480. 

27.  Act  Feb.  4,  1887,  c.  104,  §  1,  24  Stat.  379  (3  Fed.  Stat.  Ann., 
p.  809).  That  definition  was  as  follows:  "The  provisions  of  this  act 
shall  apply  to  any  common  carrier  or  carriers  engaged  in  the  trans- 
portation of  passengers  or  property  wholly  by  railroad,  or  partly  by 
railroad  and  partly  by  water,  when  both  are  used,  under  a  common 
control,  management  or  arrangement,  for  a  continuous  carriage  or 
shipment  from  one  state  or  territory  of  the  United  States,  or  the  Dis- 
trict of  Columbia,  to  another  state  or  territory  of  the  United  States, 
or  the  District  of  Columbia." 

28.  Act  of  June  29,  1906  c.  3591,  §  1  and  §  11,  34  Stat.  584,  595 
(Fed.  Stat.  Ann.  1909  Supp.,  p.  255). 


138        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

therefore  may  be  said  to  properly  declare  the  law  as 
to  tlie  carriers  mentioned,  and  the  opinion  in  the 
Geddes  case,  if  correct  under  the  old  statute,  is  no 
longer  the  law  in  view  of  the  amendment.  It  is  quite 
evident  also  from  recent  decisions  of  the  United 
States  Supreme  Court  that  such  carriers  whose  lines 
are  confined  within  the  limits  of  a  single  state  and 
who  receive  shipments  from  or  to  another  state  al- 
though without  any  through  billing,  are  engaged  in 
interstate  commerce.^'' 

§  68.  When  Reshipment  from  Point  of  Delivery 
Changes  Interstate  Character  of  Traffic. — When  a 
shipment  from  point  A  in  one  state  to  point  B  in 
another  state,  is  delivered  to  and  accepted  by  the 
consignee  at  B  and  the  consignee  thereafter  reships 
such  a  commodity  from  B  to  C  in  the  same  state — 
the  line  between  the  two  points  being  wholly  within 
the  two  states — the  last  shipment  is  an  intrastate 
one  and  the  carrier  in  hauling  it  between  B  and  C 
is  not  engaged  in  interstate  commerce.  For  the  in- 
terstate shipment  under  such  conditions  was  con- 
cluded and  determined  by  a  final  delivery  at  B,  the 
place  intended  by  the  shipper  and  carrier  for  final 
delivery.  For  instance,  a  car  of  com  was  carried 
upon  a  bill  of  lading  from  Hudson,  South  Dakota, 
to  Texarkana,  Texas,  and  five  days  afterwards  it 
was  reshipped  from  Texarkana  to  Goldthwaite,  both 
points  being  in  the  state  of  Texas.  It  was  sought  to 
hold  the  railroad  company  liable  for  violation  of  the 

29.  Baer  Bros.  Mer.  Co.  v.  Denver  &  R.  G.  R.  Co.,  233  U.  S.  479, 
58  L.  Ed.  1055;  United  States  v.  Union  Stockyards,  226  U.  S.  286, 
57  L.  Ed.  232,  also  the  same  case  reported  in  192  Fed.  330. 


RAILROADS    WITHIN    THE   ACT  139 

regulations  of  the  state  railroad  commission  applica- 
ble to  intrastate  can-iers  in  the  state  of  Texas.  On 
the  other  hand  the  railroad  company  contended  that 
the  shipment  was  interstate  from  Hudson  to  Gold- 
thwaite.  The  court  held  that  the  shipment  from 
Texarkana  to  Goldthwaite  was  an  intrastate  ship- 
ment unaffected  by  the  fact  that  the  shipper  intended 
lo  reship  the  corn  from  Texarkana  to  Goldthwaite, 
for  the  corn  had  been  carried  to  Texarkana  upon  a 
contract  for  interstate  shipment  and  the  reshipment 
five  days  later  upon  a  new  contract  was  an  inde- 
IDendent  intrastate  shipment.^'' 

A  close  case  on  the  facts  in  which  the  same  prin- 
cii^le  was  applied,  was  decided  by  the  Kentucky 
Court  of  Appeals.  A  train  consisting  of  19  empty 
coal  cars  were  brought  into  Russellville,  Kentucky, 
some  of  the  cars  having  been  brought  from  Tennes- 
see. The  conductor  of  the  train  in  which  the  cars 
were  brought  to  Russellville,  had  been  directed  to 
take  the  cars  to  Russellville  and  no  further  orders 
had  been  given  for  their  destination  and  no  one  had 
orders  to  carry  them  further.  After  reaching  Rus- 
sellville a  new  order  was  issued  directing  that  they 
be  taken  to  another  point  in  the  same  state.  Dece- 
dent was  a  flagman  on  the  train  leaving  Russell- 
ville and  each  car  in  the  train  including  the  coal  cars 
were  destined  to  another  point  within  the  same  state. 
The  court  held  that  the  interstate  journey  of  the 
cars  ended  at  Russellville  and  that  after  leaving 
Russellville  the  train  was  moving  solely  in  intra- 
state commerce  and  that  no  action  for  decedent's 

30.  Gulf,  C.  &  fe'.  F.  Ry.  Co.  v.  Texas,  204  U.  S.  403,  51  L.  Ed.  540. 


140        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

death  could  be  maintained  under  the  federal  statute. 
The  court  properly  assumed  that  hauling  even  empty 
coal  cars  from  a  point  in  one  state  to  a  point  in  an- 
other constituted  interstate  commerce,  but  in  view 
of  the  controlling  fact  that  the  cars  originating  in 
Tennessee  were  only  destined  to  Eussellville,  and 
that  at  the  latter  point  orders  were  issued  for  their 
further  destination  which  was  in  the  same  state,  that 
the  interstate  journey  ended  at  Eussellville.^^ 

In  another  case  a  coal  company  shipped  a  car  of 
coal  over  certain  railroads  from  points  in  Illinois  to 
Davenport,  Iowa,  and  there  reshipped  the  cars  of 
coal  over  another  railroad  to  points  in  Iowa.  In  a 
suit  to  have  declared  invalid  an  order  of  the  Iowa 
commission,  it  was  held  that  the  shipments  from 
Davenport  to  points  in  Iowa  were  intrastate.  Jus- 
tice Hughes,  speaking  for  the  United  States  Supreme 
Court  in  that  case,  said:  ''It  is  undoubtedly  true 
that  the  question  whether  commerce  is  interstate  or 
intrastate  must  be  determined  by  the  essential  char- 
acter of  the  commerce  and  not  by  mere  billing  or 
forms  of  contract.  Ohio  Railroad  Commission  v. 
Worthington,  225  U.  S.  101  (56  L.  Ed.  1004) ;  Texas 
&  N.  0.  R.  R.  Co.  V.  Sabine  Tram  Co.,  227  U.  S.  Ill 
(57  L.  Ed.  442);  Railroad  Commission  of  Louisiana 
V.  Texas  &  Pacific  Ry.  Co.,  229  U.  S.  336  (57  L.  Ed. 
1215,  46  L.  R.  A.  [N.  S.]  391n).  But  the  fact  that 
commodities  received  on  interstate  shipments  are  re- 
shipped  by  the  consignee,  in  the  cars  in  which  they 

31.  Louisville  &  N.  E.  Co.  v.  Strange 's  Adm 'x,  155  Ky.  439,  6 
N.  C.  C.  A.  75n,  92n,  83ii,  185n.  Accord:  Pennsylvania  E.  Co.  v. 
Knox,  218  Fed.   (C.  C.  A.)  748. 


RAILROADS   WITHIN   THE   ACT  141 

are  received,  to  otlier  points  of  destination,  does  not 
necessarily  establish  a  continuity  of  movement  or 
prevent  the  reshipment  to  a  point  within  the  same 
state  from  having  an  independent  and  intrastate 
character.  Gulf,  C.  &  S.  P.  Ry.  Co.  v.  Texas,  204  U. 
S.  403  (51  L.  Ed.  540) ;  Ohio  Railroad  Commission  v. 
Worthington,  225  U.  S.  101,  109  (56  L.  Ed.  1004); 
Texas  &  N.  0.  R.  R.  Co.  v.  Sabine  Tram  Co.,  227  U.  S. 
Ill,  129,  130  (57  L.  Ed.  442).  The  question  is  with 
respect  to  the  nature  of  the  actual  movement  in  the 
particular  case;  and  we  are  unable  to  say  upon  this 
record  that  the  state  court  has  improperly  charac- 
terized the  traffic  in  question  here.  In  the  light  of 
its  decision,  the  order  of  the  commission  must  be 
taken  as  referring  solely  to  intrastate  transportation 
originating  at  Davenport. ' '  ^- 

§  69.  When  Reshipment  from  Point  of  Delivery 
Does  Not  Chang:e  Interstate  Character  of  Traffic. — 
A  shipper  consigned  a  commodity  from  St.  Louis, 
Missouri,  to  Leadville,  Colorado.  It  was  transported 
over  one  railroad  from  St.  Louis  to  Pueblo,  Colo- 
rado, the  receiving  carrier  giving  a  receipt  showing 
that  the  commodity  was  to  be  delivered  to  the  con- 
signee at  Leadville  via  another  railroad.  No  through 
bill  of  lading  was  issued  and  no  through  route  had 
been  established.  The  first  company  issued  a  bill 
of  lading  for  the  shipment  from  St.  Louis  to  Pueblo 
at  a  local  rate.  The  car  was  there  delivered  to  an- 
other railroad  company  at  a  local  rate  which  com- 
pany named  the  first  railroad  company  as  consignor 

32.  Chicago,  M.  &  St.  P.  Ry.  Co.  v.  Iowa,  233  U.  S.  334,  58  L. 
Ed.  988. 


142        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

to  the  consignee.  The  freight  was  always  collected 
either  at  point  of  origin  or  at  destination  and  divided 
according  to  the  local  rates  of  each.  It  was  held  by 
the  United  States  Supreme  Court  that  while  there 
was  no  through  rate  or  through  route,  there  was  in 
fact  a  through  shipment  from  St.  Louis,  Missouri, 
to  Leadville,  Colorado,  and  the  interstate  character 
of  the  shipment  could  not  be  destroyed  by  ignoring 
the  point  of  origin  and  destination,  separating  the 
rate  into  its  component  parts  and  by  charging  local 
rates  and  issuing  local  way  bills  and  thus  attempt- 
ing to  convert  an  interstate  shipment  into  an  intra- 
state shipment.  The  court  quoting  from  a  former 
decision,  said:  "When  goods  shipped  from  a  point 
in  one  state  to  a  point  in  another,  are  received  in 
transit  by  a  state  common  carrier,  under  a  conven- 
tional division  of  the  charges,  such  carrier  must  be 
deemed  to  have  subjected  its  road  to  an  arrangement 
for  a  continuous  carriage  or  shipment  within  the 
meaning  of  the  act  to  regulate  commerce. ' '  ^^ 

In  another  case  shippers  delivered  to  carrier  at 
certain  stations  in  the  state  of  Louisiana  eighteen 
carloads  of  logs  and  staves  to  be  transported  by 
railway  from  said  stations  to  Alexandria,  Louisiana, 
and  there  delivered  to  another  railroad  company 
which  transported  them  to  New  Orleans,  Louisiana, 
where  they  were  unloaded  from  the  cars,  put  on 
board  ship  and  exported  to  foreign  countries.  The 
bills  of  lading  in  each  instance  provided  for  the  de- 
livery of  the  freight  from  the  initial  point  to  New 

33.  Baer  Bros.  v.  Denver  &  E.  G.  R.  R.  Co.,  233  U.  S.  479,  58  L. 
Ed.   1055. 


RAILROADS   WITHIN   THE   ACT  143 

Orleans,  there  to  be  delivered  to  the  shipper  or  con- 
signee's order.  The  consignee  resided  at  New  Or- 
leans, was  a  broker  engaged  in  negotiating  for  for- 
eign shipments  and  attending  to  shipments  for  con- 
signors in  the  United  States,  But  notwithstanding 
the  bills  of  lading  the  staves  and  logs  were  intended 
by  the  shippers  to  be  exported  to  foreign  countries 
and  were  treated  by  both  shippers  and  carriers  ac- 
cordingly, the  shippers  always  holding  the  cars  on 
the  railroad  track  at  New  Orleans  until  they  could 
accumulate  cargo  to  fill  their  export  orders  and 
arrange  for  transportation.  The  railroad  company 
allowed  shippers  twenty  days'  time  for  delivery,  as 
in  the  case  of  all  export  shipments,  without  charging 
demurrage  which  the  company  would  have  had  the 
right  to  charge  after  the  expiration  of  four  days  if 
the  shipments  had  been  considered  and  treated  as 
purely  intrastate.  The  sole  question  before  the 
United  States  Supreme  Court  was  whether  the  ship- 
ments were  foreign  or  intrastate  commerce  while 
moving  through  Louisiana.  The  court  held  that 
they  were  foreign  shipments,  and  that  the  cargo  took 
that  character  when  it  is  actually  started  in  the 
course  of  transportation  to  a  foreign  country,  al- 
though it  was  transported  within  the  state  under 
local  bills  of  lading.  The  staves  and  logs  were  in- 
tended by  the  shippers  to  be  exported  to  foreign 
countries  and  there  was  no  interruption  of  their 
transportation  to  their  destination  except  what  was 
necessary  for  transshipment  at  New  Orleans. ^^ 

34.  Railroad  Commission  of  Louisiana  v.   Texas  &  P.  E.  Co.,  229 
U.  S.  336,  57  L.  Ed.  1215. 


144        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

§  70.  All  Carriers  by  Railroad  and  All  Their  Em- 
ployes Within  Territories  Included.— As  Congress 
has  full  and  complete  power  over  territories  and 
other  possessions  of  the  United  States,  §  2  of 
the  federal  act,  which  applies  to  all  common  carriers 
by  railroad  and  all  their  employes  in  the  territories, 
the  District  of  Columbia,  the  Panama  Canal  Zone, 
or  other  possessions  of  the  United  States,  is  valid.^'' 
Although  the  Act  of  1906  was  declared  invalid  as  to 
carriers  engaged  in  interstate  and  foreign  com- 
merce, even  that  law  as  to  all  carriers  and  all  their 
employes  in  territories  and  other  possessions  of  the 
United  States,  was  declared  valid.  However,  by 
§  2,  supra,  of  the  Act  of  1908  which  regulates 
only  carriers  by  railroad  in  territories  and  other 
possessions  of  the  United  States,  the  Act  of  1906  was 
repealed.  But  it  was  specifically  provided  in  §  8 
of  the  Act  of  1908  that  "nothing  in  this  act  shall 
be  held  to  limit  the  duty  or  liability  of  common  car- 
riers or  to  impair  the  rights  of  their  employes  under 
any  other  act  or  acts  of  Congress,  or  to  affect  the 
prosecution  of  any  pending  proceeding  or  right  of 
action  under  the  act  of  Congress  entitled  'An  act 
relating  to  liability  of  common  carriers  in  the  Dis- 
trict of  Columbia  and  territories,  and  to  common 
carriers  engaged  in  commerce  between  the  states  and 
between  the  states  and  foreign  nations  to  their  em- 
ployes,' approved  June  eleventh,  nineteen  hundred 
and  six." 

35.  El  Paso  V.  N.  E.  E.  Co.  v.  Gutierrez,  215  U.  S.  87,  54  L,  Ed. 
106,  aff'g  102  Tex.  378;  Atchison,  T.  &  S.  F.  Ky.  Co.  v.  Mills, 
49  Tex.  Civ.  App.  349. 


CHAPTER  V 

BENEFICIAEIES  AND  DAMAGES  IN  DEATH 
CASES  UNDER  FEDERAL  ACT 

§  71.  Beneficiaries  Under  the  Federal  Statute. 

§  72.  Existence  of  Beneficiaries  Named  in  Statute  Jurisdictional. 

§  73.  Parents  Not  Entitled  to  Damages  When  There  Is  a  Widow  or 

Children. 
§  74.  No  Remedy  Under  the  Federal  Act  Unless  There  Are  Dependent 

Relatives  Named  in  the  Statute. 
§  75.  Measure  of  Damages  in  Cases  of  Death  Under  the  Federal  Act. 
§  76.  Damages  for  the  Estate  of  Decedent  Not  Recoverable. 
§  77.  No  Presumption  of  Damage  to  Widow  and  Child. 
§  78.  Loss  of  Society,  Companionship   and  Wbunded  Affections  Not 

Elements  of  Damages. 
§  79.  Statutory  Action  Is  Not  for  the  Equal  Benefit  of  Each  of  the 

Surviving  Beneficiaries. 
§  80.  Cases  Under  Federal  Act  in  Which  Courts  Decided  Question  of 

Sufficiency  of  Proof  Establishing  Dependency  of  Beneficiaries 

in  Second  and  Third  Classes. 
§  81.  Loss    of    Care,    Counsel,    Training    and    Education    by    Minors 

Proper    Elements    of    Damages. 
§  82.  Pecuniary  Loss  Not  Dependent  Upon  Any  Legal  Liability  of  the 

Employe  to  the  Beneficiaries. 
§  83.  Alien  Parents  Residing  Abroad  May  Recover  Under  Federal  Act. 
§  84.  No  Recovery  for  Pain  and  Suffering  of  Deceased  Prior  to  1910 

Amendments. 
§  85.  No   Recovery   Under    §  9    (Amendment   1910)    When   Death   Is 

Instantaneous. 
§  86.  Decisions  of  National  Courts  on  Measure  of  Damages  Control. 
§  87.  Errorless  Instructions  on  Measure  of  Damages  Under  Federal 

Act. 
§  88.  Erroneous  Instructions  on  Measure  of  Damages  Under  Federal 

Act. 
§  89.  Beneficiaries   May  Recover   for   the   Suffering  of  Deceased   as 

Well  as  for  His  Death. 
§  90.  Death  Must  Be  Result  of  Negligence  Before  Beneficiaries  Can 

Recover  Under  §  1,  But  Not  Under  §  9. 

145 

Roberts  Ijabilitius — 10 


146        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

§  91.  Loss  of  Prospective  Gifts — Contributions  During  Lifetime  of 
Deceased   Employe. 

§  92.  The  Term  ' '  Next  of  Kin ' '  Construed  to  Mean  Illegitimate  Chil- 
dren— Conflicting  Decisions. 

§  93.  Cases  Declaring  the  True  Measure  of  Damages  and  Approved 
by  the  United  States  Supreme  Court. 

§  94.  Distribution  of  Amount  Eecovered  Controlled  by  Federal 
Statute  and  Not  State  Laws. 

§  95.  Damages  Due  Each  Beneficiary  Must  Be  Apportioned  in  the 
Verdict. 

§  71.  Beneficiaries  Under  the  Federal  Statute. — In 
cases  of  death  of  employes  under  conditions  de- 
scribed in  the  act,  the  personal  representative  may 
bring  an  action,  first,  for  the  benefit  of  the  widow, 
or  husband  or  children  of  the  employe.  If  there  be 
no  husband,  widow  or  children,  then  the  employe's 
parents  become  the  beneficiaries  under  the  federal 
act.  If  there  be  no  husband,  widow  or  children  and 
no  parents  of  the  employe  surviving  him,  then  the 
action  may  be  brought  for  the  benefit  of  the  next  of 
kin  dependent  upon  such  employe. 

§  72.  Existence  of  Beneficiaries  Named  in  Statute 
Jurisdictional. — If  an  employe  of  a  railroad  suffers 
death  while  the  carrier  is  engaged  in  interstate  com- 
merce, and  while  he  is  employed  in  such  commerce, 
no  right  of  action  under  any  law  exists  against  the 
carrier  for  negligence  in  causing  such  death,  where 
none  of  the  classes  mentioned  in  the  federal  statute 
exists  or  survive  the  decedent.  The  right  of  action 
given  under  the  federal  law  is  conferred  upon  them 
and  no  one  else.  Hence  the  existence  of  such  bene- 
ficiaries is  jurisdictional  to  a  right  of  action.^    That 

1.  Illinois  C.  Ey.  Co.  v.  Doherty  's  Adm  'r,  153  Ky.  363,  6  N.  C.  C.  A. 
75n,  440n,  444n,  47  L.  E.  A.  (N.  S.)  3 In;  Thomas  v.  Chicago  & 
N.  W.  Ey.  Co.,  202  Fed.  766,  6  N.  C.  C.  A.  439n,  446n. 


BENEFICIARIES   AND   DAMAGES   FOE   DEATH  147 

no  action  exists  for  the  death  of  an  employe  unless 
the  beneficiaries  named  in  the  act  survive  and  who 
suffer  pecuniary  loss,  is  affirmed  in  a  recent  case 
decided  by  the  Supreme  Court  of  the  United  States.^ 
In  that  case  the  court  said:  "The  nature  of  the 
rights  and  responsibilities  arising  out  of  this  act 
has  been  discussed  and  determined  in  four  opinions 
announced  by  this  court  since  the  instant  cause  was 
decided  by  the  Circuit  Court  of  Appeals.  Michigan 
C.  R.  Co.  V.  Vreeland,  227  U.  S.  59,  57  L.  Ed.  417,  33 
Sup.  Ct.  Rep.  192  (3  N.  C.  C.  A.  807),  Ann.  Cas. 
1914  C  176n;  American  R.  Co.  v.  Didricksen,  227  U. 
S.  145,  57  L.  Ed.  456,  33  Sup.  Ct.  Rep.  224  (3  N.  C. 
C.  A.  809n,  831n) ;  Gulf,  C.  &  S.  F.  R.  Co.  v.  McGinnis, 
228  U.  S.  173,  57  L.  Ed.  785,  33  Sup.  Ct.  Rep.  426,  3 
N.  C.  C.  A.  806  (4  N.  C.  C.  A.  926n) ;  North  Carolina 
R.  Co.  V.  Zachary,  232  U.  S.  248,  58  L.  Ed.  591,  34  Sup. 
Ct.  Rep.  305  (6  N.  C.  C.  A.  194n),  Ann.  Cas.  1914  C 
159.  It  is  now  definitely  settled  that  the  act  de- 
clared two  distinct  and  independent  liabilities  rest- 
ing upon  the  common  foundation  of  a  wrongful  in- 
jury: (1)  liability  to  the  injured  employe  for  which 
he  alone  can  recover;  and  (2),  in  case  of  death,  lia- 
bility to  his  personal  representative  'for  the  benefit 
of  the  surviving  widow  or  husband  and  children,' 
and  if  none,  then  of  the  parents,  which  extends  only 
the  pecuniary  loss  and  damage  resulting  to  them  by 
reason  of  the  death. ' ' 

§73.  Parents   Not   Entitled   to   Damages   When 
There  Is  a  Widow  or  Children. — Under  the  federal 

2.  Garrett  v.  LouisviUe  &  N.  E.  Co.,  —  U.  &'.  — ,  35  Sup.  Ct.  32, 


148        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

act,  the  intestate 's  mother  is  not  entitled  to  share  in 
the  damages  when  there  is  a  widow.^  This  con- 
clusion necessarily  follows  from  a  reading  of  the 
statute,  because  none  of  the  beneficiaries  in  the  sec- 
ond class,  the  parents,  are  entitled  to  any  damages, 
no  matter  how  dependent  they  were,  if  the  decedent 
left  surviving  him  dependent  beneficiaries,  named  in 
the  first  class,  that  is,  a  widow  or  children.  On  the 
other  hand,  if  there  are  no  beneficiaries  specified  in 
the  first  class,  the  beneficiaries  mentioned  in  the  sec- 
ond class  may  then  recover,  if  they  prove  a  pecuniary 
loss  by  reason  of  the  death  of  the  deceased. 

§  74.  No  Remedy  Under  the  Federal  Act  Unless 
There  Are  Dependent  Relatives  Named  in  the  Stat- 
ute.— If  at  the  time  of  the  death  of  an  employe  or 
an  injury  which  subsequently  caused  death,  the  car- 
rier was  engaged  in  interstate  commerce  and  the 
injured  servant  was  employed  by  it  in  such  com- 
merce, there  is  no  remedy  against  the  carrier  unless 
dependent  beneficiaries  named  in  the  act,  survive 
him.  The  question  of  survival  of  the  cause  of  action, 
is  not  one  of  procedure  governed  by  the  state  prac- 
tice but  depends  upon  the  substance  of  the  action.^ 
Although  the  deceased  left  surviving  him  bene- 
ficiaries named  in  the  statute,  yet  there  is  no  liability 
when  the  federal  act  is  applicable,  unless  the  bene- 

aff'g  same  case  reported  in  117  C.  C.  A.  109,  197  Fed.  715,  3  N.  C. 
C.  A.  769,  4  N.  C.  C.  A.  925n. 

3.  Goen  v.  Baltimore  &  O.  S.  W.  E.  Co.,  179  ni.  App.  566;  St. 
Louis,  S.  F.  &  T.  Ey.  Co.  v.  Geer,  —  Tex.  Civ.  App.  — ,  149  S.  W, 
1178. 

4.  Michigan  C.  Ey.  Co.  v.  Vreeland,  227  U.  S.  59,  57  K  Ed.  417, 
.3  N.  C.  C,  A.  807,  Ann.  Cas.  1914  C  176n. 


BENEFICIAEIES    AND   DAMAGES    FOR   DEATH  149 

ficiaries  were  dependent  upon  the  deceased.  Unless 
the  plaintiff  shows  that  the  beneficiaries  named  in 
the  statute  have  been  deprived  of  a  reasonable  ex- 
pectation of  pecuniary  benefits  by  the  wrongful 
death  of  the  injured  employe,  there  can  be  no  recov- 
ery. The  damage  is  strictly  limited  to  the  financial 
loss  thus  sustained.^ 

In  the  McGinnis  case,  cited  supra,  the  Supreme 
Court  of  the  United  States  in  overruling  the  decision 
of  one  of  the  courts  of  appeals  in  Texas,  said :  ' '  The 
court  of  civil  appeals  upheld  this  ruling,  saying  that 
the  federal  'statute  expressly  authorized  a  suit  to 
be  brought  by  the  personal  representatives  for  the 
benefit  of  the  surviving  wife  and  children  of  the  de- 
ceased, irrespective  of  whether  they  were  dependent 
upon  him,  or  had  the  right  to  expect  any  pecuniary 
assistance  from  him.'  147  S.  W.  1189.  This  con- 
struction of  the  character  of  the  statutory  liability 
imposed  by  the  act  of  Congress  was  erroneous.  In 
a  series  of  cases  lately  decided  by  this  coui't,  the  act 
in  this  aspect  has  been  construed  as  intended  only  to 
compensate  the  surviving  relatives  of  such  a  de- 

5.  Gulf,  C.  &  S.  F.  Ey.  Co.  v,  McGinnis,  228  U.  S.  173,  57  L.  Ed. 
785,  3  N.  C.  C.  A.  806,  4  N.  C.  C.  A.  926n;  American  E.  Co.  v.  Did- 
ricksen,  227  U.  S.  145,  57  L.  Ed.  456,  3  N.  C.  C.  A.  809n,  831n; 
Michigan  C.  E.  Co.  v.  Vreeland,.227  U.  S.  59,  57  L.  Ed.  417,  3  N.  C. 
C.  A.  807,  Ann.  Cas.  1914  C  176n;  North  Carolina  E.  Co.  v.  Zachary, 
232  U.  &'.  248,  58  L.  Ed.  591,  6  N.  C.  C.  A.  194n,  Ann.  Cas.  1914  C 
159n;  Thomas  v.  Chicago  &  N.  W.  Ey.  Co.,  202  Fed.  766,  6  N.  C. 
C.  A.  439n,  446n;  Illinois  C.  Ey.  Co.  v.  Doherty's  Adm'x,  153  Ky. 
363,  6  N.  C.  C.  A.  75n,  440n,  444n,  47  L.  E.  A.  (N.  S.)  31n;  Chesapeake 
&  O.  Ey.  Co.  V.  Dwyer's  Adm'x,  157  Ky.  590,  6  N.  C.  C.  A.  449n; 
St.  Louis,  S.  F.  &  T.  E.  Co.  v.  Seale,  229  U.  S.  156,  57  L.  Ed.  1129, 
3  N.  C.  C.  A.  800,  Ann.  Cas.  1914  C  156n;  Dooley  v.  Seaboard  A.  L. 
Ey.  Co.,  163  N.  C.  454,  6  N.  C.  C.  A.  440n,  442n,  452n. 


150        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

ceased  employe  for  the  actual  pecuniary  loss  result- 
ing to  the  particular  person  or  persons  for  whose 
benefit  an  action  is  given.  The  recovery  therefore, 
must  be  limited  to  compensating  those  relatives  for 
whose  benefit  the  administrator  sues  as  are  shown 
to  have  sustained  some  pecuniary  loss." 

§  75.  Measure  of  Damages  in  Oases  of  Death  Un- 
der the  Federal  Act. — In  a  suit  under  the  federal  act 
the  damages  can  only  be  compensatory,  and  the 
measure  of  them  is  what  the  beneficiaries  named  in 
the  statute  and  no  one  else,  or  either  of  them,  neces- 
sarily lose  in  or  by  the  death  of  the  deceased  employe, 
and  in  measuring  these  damages,  the  jury  are  at 
liberty  to  take  into  consideration  the  age,  health, 
and  expectancy  of  life  of  the  deceased,  his  earning 
capacity,  his  character,  his  mode  of  treatment  to  his 
family  and  the  amount  contributed  out  of  his  wages 
to  them  for  their  support,  and  calculate  from  these 
facts  the  amount  the  jury,  as  reasonable  and  prac- 
tical men,  believe  the  plaintiffs  lose  because  of  the 
death.  If  the  deceased  was  guilty  of  contributory 
negligence,  the  damages  should  be  diminished,  but 
if  the  violation  by  defendant  of  a  law  of  Congress 
requiring  safety  appliances,  contributes  to  the  death 
or  was  the  proximate  cause  thereof,  then  the  dam- 
ages are  not  to  be  diminished  because  of  any  con- 
tributory negligence.^ 

§  76.  Damages  for  the  Estate  of  Decedent  Not  Re- 
coverable.— Under  the  federal  act  the  estate  of  de- 
ceased employe  is  not  entitled  to  any  damages  by 

6.  American  E.  Co.  v.  Birch,  224  U.  S.  547,  56  L.  Ed.  879;  McCul- 
lough  V.  Chicago,  E.  I.  &  P.  E.  Co.,  —  la.  — ,  142  N.  W.  67,  6  N.  C. 


BENEFICIARIES    AND   DAMAGES   FOR    DEATH  151 

reason  of  his  death.  A  trial  court  instructed  the 
jury  in  a  suit  under  the  federal  act  that  they  could 
award  as  damages  such  a  sum  of  money  as  would 
reasonably  compensate  the  estate  of  decedent  for  the 
destruction  of  his  power  to  earn  money,  caused  by 
his  death.  This  charge  was  held  by  the  appellate 
court  to  be  erroneous,  for  the  reason  that,  the  na- 
tional statute  made  no  provision  for  damages  to  the 
estate  of  a  decedent  caused  by  his  death,  the  dam- 
ages being  confined  solely  to  the  pecuniary  loss  of 
the  beneficiaries  caused  by  the  death.'^  In  another 
case  for  a  similar  reason  an  instruction  was  permit- 
ted the  recovery  of  damages  for  the  benefit  of  the 
widow  and  children  but  in  case  the  net  earnings  of 
the  deceased  were  in  excess  of  the  sum,  that  such 
damages  could  be  recovered  by  the  administrator  for 
the  estate,  was  held  erroneous  under  the  federal  act.* 
A  similar  instruction  was  condemned  in  another  case 
for  the  same  reason.*^ 

§  77.  No  Presumption  of  Damage  to  Widow  and 
Child. — The  Supreme  Court  of  Iowa  held  in  an  action 
under  the  federal  act,  that  substantial  damages  in 
cases  of  the  death  of  a  husband  and  father,  would 
be  presumed  in  favor  of  the  widow  and  children.  ^^ 

C.  A.  78n,  444n,  449ii,  451n;   Thornton  v.  Seaboard  A.  L.  Ey.  Co., 
_  g.  c.  — ,  6  N.  C,  C.  A.  85n,  93n,  82  S.  E.  433. 

7.  Chesapeake  &  O.  R.  Co.  v.  Dwyer  's  Adm  'x,  157  Ky.  590,  6  N.  C. 
C.  A.  449n. 

8.  Southern  Ry.  Co.  v.  Hill,  139  Ga.  549. 

9.  Dooley  v.  Seaboard  A.  L.  Ry.  Co.,  163  N.  C.  454,  6  N.  C.  C.  A. 
440n,  442n,  452n. 

10.  McCuUough  V.  Chicago,  R.  I.  &  P.  R.  Co.,  —  Iowa  — ,  6  N.  C. 
C.  A.  78n,  444n,  449n,  451n,  142  N.  W.  67.  See  also,  Garrett  v, 
LouisviUe  &  N.  R.  Co.,  117  C.  C.  A.  109,  197  Fed.  715. 


]  52        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

The  court  cites  authorities  to  sustain  this  proposi- 
tion but  this  ruling  seems  to  be  in  direct  conflict  with 
the  decisions  of  the  Supreme  Court  of  the  United 
States.  It  is  held  by  that  court,  that,  even  as  to  ben- 
eficiaries in  the  first  of  the  three  specified  classes 
under  the  federal  act,  proof  of  pecuniary  loss  must 
both  be  alleged  and  shown.^^ 

§  78.  Loss  of  Society,  Companionship  and  Wound- 
ed Aifections  Not  Elements  of  Dajnages.— The  pe- 
cuniary loss  or  damage  which  alone  can  be 
recovered  under  the  federal  act  by  the  beneficiaries, 
excludes  those  losses  which  result  from  the  depriva- 
tion of  the  society  and  companionship  of  the  de- 
ceased, or  those  injuries  to  the  affections  and  senti- 
ments which  arise  from  the  death  of  relatives  and 
which,  though  painful  and  grievous  to  be  borne,  can- 
not be  measured  or  recompensed  by  money.^^  In 
the  case  last  cited,  it  was  held  that  the  care  and 
advice  which  the  wife  would  have  received  from  the 
husband  if  he  had  lived,  was  not  an  element  of  dam- 
age and  threw  the  door  open  to  the  wildest  specula- 
tion. In  another  case  it  was  held  that  loss  to  parents 
of  the  companionship  of  their  son  was  not  an  element 
of  damages  under  the  federal  act.^^  The  Supreme 
Court  of  North  Carolina  held  that  the  damages  re- 
coverable by  a  parent  for  the  negligent  death  of  a 

11.  Gulf,  C.  &  S.  F.  E.  Co.  V.  McGinnis,  228  U.  S.  173,  57  L,  Ed. 
785,  3  N.  C.  C.  A.  806,  4  N.  C.  C.  A.  926n. 

12.  Michigan  C.  R.  Co.  v.  Vreeland,  227  U.  S.  59,  57  L.  Ed.  417, 
3  N.  C.  C.  A.  807,  Ann.  Cas.  1914  C  176n. 

13.  American  R.  Co.  v.  Didrieksen,  227  U.  S.  145,  57  L.  Ed.  456, 
3  N.  C.  C.  A.  809n,  881n;  McCullough  v.  Chicago,  R.  I.  &  P.  Ry.  Co., 
—  Iowa  — ,  6  N.  C.  C.  A.  78n,  444n,  449n,  451n,  142  N.  W.  67. 


BENEFICIARIES    AND   DAMAGES   FOR   DEATH  153 

son  was  limited  under  the  federal  act  to  such  loss  as 
resulted  to  the  parent  because  of  being  deprived  of 
a  reasonable  expectation  of  pecuniary  benefits  by 
the  wrongful  death  of  the  employe.^^ 

§  79.  Statutory  Action  Is  Not  for  the  Equal  Bene- 
fit of  Each  of  the  Surviving  Beneficiaries. — The  ac- 
tion given  to  an  administrator  in  case  of  the  death 
of  an  employe  under  the  federal  act,  is  not  given  for 
the  equal  benefit  of  the  surviving  relatives  for  whose 
benefit  the  suit  is  brought.  Though  the  judgment 
may  be  for  a  gross  amount,  the  interest  of  each  bene- 
ficiary must  be  measured  by  his  or  her  individual 
pecuniary  loss  and  that  apportionment  is  for  the 
jury  to  return.  This  principle  will  exclude  any  re- 
covery in  behalf  of  such  as  show  no  pecuniary  loss. 
Where  a  deceased  employe  left  a  widow  and  four 
children,  a  suit  was  brought  by  the  widow  as  admin- 
istratrix for  her  benefit  and  all  the  children  who 
were  named  in  the  petition.  One  of  the  children  was 
a  married  woman  residing  with  and  being  main- 
tained by  her  husband.  There  was  neither  proof 
nor  allegation  that  this  married  daughter  was  in  any 
way  dependent  upon  the  deceased,  nor  that  she  had 
any  reasonable  expectation  of  any  pecuniary  benefit 
as  a  result  of  a  continuation  of  his  life.  It  was  held 
that  the  court  committed  error  in  refusing  to  instruct 
the  jury  that  they  could  not  find  any  damage  in 
favor  of  the  married  daughter. ^^ 

14,  Dooley  v.  Seaboard  A.  L.  Ey.  Co.,  163  N.  C.  454,  6  N.  C.  C.  A. 
440n,  442n,   452ii. 

15.  Gulf,  C.  &  S.  F.  E.  Co.  V,  McGinnis,  228  U.  S.  173,  57  L.  Ed. 
785,  3  N.  C.  C.  A.  806,  4  N.  C.  C.  A.  926n;  Illinois  C.  Ey.  Co.  v. 
Doherty,   153  Ky.   363,  6  N.  C.  C.  A.  75n,  440n,  444n,  47  L.  E.  A. 


154        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RMLROADS 

§  80.  Cases  Under  Federal  Act  in  Which  Courts 
Decided  Question  of  Sufficiency  of  Proof  to  Estab- 
lish Dependency  of  Beneficiaries  in  Second  and  Third 
Classes. — Under  the  federal  act  the  measure  of  dam- 
ages to  parents  for  the  death  of  an  unmarried  adult 
son  has  been  held  to  be  the  present  worth  of  such 

(N.  S.)  31n;  McCullough  v.  Chicago,  E.  I.  &  P.  E.  Co.,  —  Iowa  — , 
6  N.  C.  C.  A.  78n,  444ii,  449n,  451n,  142  N.  W.  67. 

In  McGarvey's  Guardian  v.  McGarvey's  Admr.  et  al,  —  Ky.  — , 
173  S.  W.  765,  decided  March  2,  1915,  an  administrator  of  the  estate 
of  a  deceased  railroad  employe  had  brought  an  action  against  a  rail- 
road company  under  the  Federal  Act  and  the  cause  was  settled  by 
the  payment  of  the  sum  of  $5,000  to  him.  The  beneficiaries  were  the 
widow  and  a  child  by  a  former  marriage  and  the  question  was  pre- 
sented to  the  court  how  the  money  should  be  apportioned  between 
them.  The  court  held  that  the  money  should  be  divided  on  the  basis 
of  the  respective  periods  during  which  the  two  beneficiaries  would 
sustain  pecuniary  loss.  The  court  said:  "There  yet  remains  the 
question  of  the  extent  to  which  he  is  entitled  to  participate  therein. 
If  we  were  making  this  finding  as  an  original  proposition  (that  is,  as 
a  jury),  the  result  reached  might  be  different;  but  here  the  amount 
of  the  recovery  is  already  ascertained  and  fixed,  and  the  only  question 
involved  is  the  proper  division  of  the  fund  in  an  equitable  way.  The 
widow  was  about  30  years  of  age  at  the  time  of  her  husband's  death, 
and  in  good  health,  but  without  means  or  income ;  and,  comparing  the 
condition  and  position  of  the  two,  we  have  reached  the  conclusion  that 
the  pecuniary  loss  to  both  son  and  widow  is  approximately  the  same 
upon  a  per  annum  basis.  Considering  the  pecuniary  loss  to  each  to  be 
the  same  sum  per  annum,  the  recovery  should  be  divided  on  the  basis  of 
the  respective  periods  during  which  the  two  beneficiaries  will  sustain 
pecuniary  loss.  Upon  this  question,  counsel  for  appellant  argues  that 
the  period  of  pecuniary  loss  to  the  son  should  embrace  such  time, 
beyond  the  date  of  his  attaining  the  age  of  21  years,  as  would  reason- 
ably be  required  to  educate  him  for  the  medical  profession,  as  there  is 
some  evidence  in  the  record  that  his  father  had  expressed  a  determina- 
tion to  give  him  such  an  education;  counsel  insisting  that  to  do  this 
would  require  six  years,  and  that  therefore  such  is  the  period  of  his 
pecuniary  loss.  Counsel  for  appellee  insists  that  his  pecuniary  loss 
should  not  be  extended  beyond  the  date  of  his  attaining  the  age  of  21 
years,  and  that  the  period  of  pecuniary  loss  to  the  widow  should  be 
her  expectancy  of  life,  according  to  the  life  tables,  which  is  30  years. 
We  cannot,   however,   agree  wholly  with  either  contention.     It  may 


BENEFICIARIES    AND   DAMAGES    FOR    DEATH  155 

gifts  as  they  reasonably  could  have  expected  to  re- 
ceive from  him  in  the  course  of  their  lives. ^"^  In  the 
case  cited  an  unmarried  adult  son,  25  years  old, 

be  conceded  that  the  expectations  of  the  son  may  extend  beyond  the 
date  of  his  attaining  the  age  of  21  years,  but  his  dependency  would 
not,  and,  as  that  is  the  date  of  the  termination  of  the  legal  liability 
of  the  father,  it  should,  under  ordinary  circumstances,  be  the  end 
of  the  period  of  pecuniary  loss  to  him.  The  expectancy  of  life  of  the 
widow  might  be  greater  than  that  of  the  deceased  husband,  or  it  might 
be  less,  but  her  dependency  for  support  could  not  extend  longer  than 
his  expectancy  of  life,  as  the  support  must  then  cease.  If  her  life 
expectancy  is  less  than  that  of  the  husband,  the  period  of  pecuniary 
loss  would  be  governed  by  her  expectancy.  If  her  life  expectancy  is 
greater  than  that  of  her  husband,  then  her  period  of  pecuniary  loss 
should  be  governed  by  his  expectancy  of  life.  In  this  case,  from  the 
death  of  John  McGarvey  until  the  date  upon  which  Henry  McGarvey 
will  have  attained  the  age  of  21  years  is  4  years  and  4  months;  and 
McGarvey 's  expectancy  of  life  was  27.34  years;  that  of  his  widow 
being  greater.  And,  dividing  the  recovery  on  the  basis  of  the  respec- 
tive periods  of  pecuniary  loss,  the  widow  is  entitled  to  86.32  per  cent 
thereof,  or  $4,316.00,  and  the  son  is  entitled  to  13.68  per  cent  thereof, 
or  $684." 

16.  McCuUough  V.  Chicago,  K.  I.  &  P.  Ry.  Co.,  —  Iowa  — ,  6  N. 
C.  C.  A.  78n,  444n,  449n,  451n,  142  N.  W.  67;  Eichelieu  v.  Union 
Pac.  Ey.  Co.,  —  Neb.  — ,  149  N.  W.  772.  Decedent  was  a  laborer  for 
an  interstate  railroad.  He  was  23  years  of  age.  He  had  arrived  in 
this  country  about  two  months  before  his  death.  Prior  thereto  he  had 
lived  with  his  parents  in  Finland.  There  was  some  evidence  that  he 
had  given  his  parents  some  money.  The  court  in  holding  that  there 
was  sufficient  evidence  of  dependency  to  sustain  a  verdict  of  $2,000, 
said:  "But  taking  the  evidence  as  it  is  found,  may  we  say  there  is 
no  support  for  the  amount  of  the  verdict?  Under  our  decisions  we 
think  there  is.  The  facts  indicate  that  the  parents  were  in  need  of 
financial  assistance;  that  the  deceased  had  during  his  minority  and 
for  two  years  in  addition  given  aid  both  in  money  and  its  equivalent, 
work;  and  that  he  had  the  disposition  to  continue  the  same,  since 
from  his  first  wages  in  this  country  he  sent  his  father  $10.00.  It  is 
also  apparent  that  the  deceased  was  industrious  and  was  earning 
wages,  at  least  those  of  the  ordinary  laborer.  We  think  these  are 
factors  from  which  the  jury  could  find  that  in  the  death  of  their  son 
the  parents  sustained  a  substantial  pecuniary  loss."  Lundeen  v. 
Great  N.  By.  Co.,  —  Minn.  — ,  150  N.  W.  1088. 


156        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

killed  under  conditions  making  the  federal  act  ex- 
clusively applicable  upon  the  question  of  recovery, 
made  his  home  with  his  father  and  mother,  boarded 
and  roomed  there  and  paid  them  for  his  room  and 
board  and  in  that  way  contributed  to  the  family. 
The  son  was  the  oldest  of  the  children.  The  father 
was  a  common  laborer,  57  years  old,  and  the  mother 
54  years  old.  The  son  had  been  working  for  the 
railroad  two  years.  The  mother,  testifying  said  that 
the  son  contributed  to  the  family  expenses  but 
whether  by  gifts  or  solely  in  paying  for  board  and 
lodging  as  described,  does  not  clearly  appear  in  the 
report  of  the  case.  This  was  the  entire  testimony  in 
the  case  as  to  the  pecuniary  loss.  The  court  held 
that  such  evidence  did  not  furnish  sufficient  data 
upon  which  a  jury  could  properly  award  a  verdict  of 
$5,000. 

On  the  other  hand,  in  another  case,  a  son,  single, 
24  years  old,  strong  in  physique,  well  educated,  pos- 
sessing good  business  traits,  living  with  his  wealthy 
parents  on  a  large  farm,  went  away  to  become  a 
brakeman,  stating  he  would  be  back  on  the  farm  to 
gather  the  com.  He  was  killed  while  on  duty  by 
the  negligence  of  the  defendant.  While  at  home 
and  before  going  to  work  for  the  railroad,  he  raised 
crops  on  the  farm  and  lived  with  his  father  and 
mother  as  one  of  the  family.  He  did  not  receive  any 
fixed  wages  from  his  father  who  owned  and  culti- 
vated the  farm.  His  father  was  in  the  habit  of  giv- 
ing him  money,  however,  when  he  desired.  The 
father  was  74  years  old  and  growing  feeble.  He 
relied  on  the  deceased  as  the  manager  of  his  farm. 


BEaSTEFIClARIES  AND  DAMAGES   FOR  DEATH  157 

It  was  held  these  facts  presented  a  prima  facie  case 
showing  a  reasonable  expectation  of  pecuniary  bene- 
fits from  the  continuance  of  the  son 's  life  which  with 
proof  of  the  value  of  such  benefit,  was  susceptible 
of  estimate  of  the  pecuniary  loss  to  the  father.^^ 

That  a  deceased  railroad  employe  had  a  sick 
brother  to  whom  he  had  not  contributed  anything  in 
his  lifetime  did  not  make  the  question  of  dependency 
under  the  federal  statute  a  matter  for  the  jury  to 
pass  upon  for  such  evidence  was  not  sufficient.^^ 
In  another  case  the  Supreme  Court  of  North  Caro- 
lina held  that  a  mother  may  recover  damages  for 
the  death  of  a  son  killed  while  employed  in  interstate 
commerce  for  a  common  carrier  railroad  if  she  has 
reasonable  expectation  of  pecuniary  benefit  from 
the  continuance  of  the  life  of  the  son  although  he 
had  not  contributed  anything  to  her  support  in  his 
lifetime. ^^  A  laboring  man  killed  while  repairing 
an  interstate  track  for  a  railroad  company,  during 
his  lifetime  sent  five  or  six  dollars  a  week  to  a  wid- 
owed sister  in  Italy  who  had  two  children.  By  his 
death  the  sister  was  deprived  of  this  money  which 
she  had  been  accustomed  to  receive.  It  was  held  by 
a  majority  of  the  court.  Judges  Lyon  and  Smith 
dissenting,  that  such  facts  were  sufficient  to  submit 
the  question  of  dependency  under  the  federal  act  to 

17.  Garrett  v.  Louisville  &  N.  R.  Co.,  117  C.  C.  A.  109,  197  Fed.  715, 
3  N.  C.  C.  A.  769,  4  N.  C.  C.  A.  925n. 

18.  Jones  v.  Charleston  &  W.  C.  Ey.  Co.,  —  S.  C.  — ,  6  N.  C.  C.  A. 
439n,  443n,  82  S.  E.  415. 

19.  Irvin  v.  Southern  Ry.  Co.,  —  N.  C.  — ,  80  S.  E.  78. 


158        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

the  jury.2*^  In  an  action  by  an  administrator  of  a 
railroad  employe  for  the  benefit  of  brothers  and  sis- 
ters of  the  deceased  the  evidence  disclosed  that  the 
deceased  left  surviving  him  several  brothers  and  two 
sisters,  one  a  sister  of  charity  residing  in  a  convent 
who  received  no  support  from  the  decedent  in  his 
lifetime,  and  the  other  a  married  woman  living  in 
Ireland.  There  was  some  testimony  that  the  dece- 
dent had  borrowed  money  to  send  to  his  sister  in 
Ireland,  but  whether  the  money  was  sent  her  in  pay- 
ment of  a  debt  or  for  her  support  was  not  disclosed. 
No  evidence  was  introduced  to  show  that  the  hus- 
band in  Ireland  was  unable  to  support  his  wife. 
There  was  no  evidence  that  any  of  the  brothers  were 
dependent  upon  the  deceased.  The  court  held  that 
there  could  be  no  recovery  under  the  federal  act.^^ 
A  sister  whom  a  deceased  brakeman  in  his  lifetime 
supported  by  gifts  of  money  and  by  payment  of 
board,  was  held  to  be  a  dependent  beneficiary  under 
the  federal  act.^^ 

§  81.  Loss  of  Care,  Counsel,  Training  and  Educa- 
tion by  Minors  Proper  Elements  of  Damages. — The 
term  "dependency"  as  used  in  the  federal  act  has 
been  held  by  the  Supreme  Court  of  the  United  States 
to  be  jurisdictional  to  the  right  of  recovery  as  to  all 
three  of  the  classes  of  beneficiaries  mentioned  in  the 
statute.  The  term  means  a  pecuniary  or  material 
loss,  as  distinguished  from  those  moral  elements  of 

20.  Bitondo  v.  New  York,  C.  &  H.  R.  Co.,  163  App.  Div.  (N.  Y.) 
823,  6  N.  C.  C.  A.  230n. 

21.  Illinois  C.  R.  Co.  v.  Doherty's  Adm'x,  153  Ky.  363,  6  N.  C. 
C.  A.  75n,  440n,  444n,  47  L.  R.  A.   (N.  S.)  131n. 

22.  Richelieu  v.  Union  P.  Ry.  Co.,  —  Neb.  — ,  149  N.  W.  772. 


BENEFICIARIES  AND  DAMAGES  FOR  DEATH  159 

loss  due  to  the  death  of  a  relative.  Hence  it  was 
declared  erroneous  for  a  court  to  instruct  a  jury  that 
the  care  and  advice  which  a  wife  would  have  re- 
ceived from  the  husband  were  financial  losses  be- 
cause such  elements  are  not  strictly  financial  losses.^^ 
However,  the  term  ''dependency"  in  cases  of  a  loss 
of  father  or  mother,  when  the  beneficiary  is  a  minor 
child,  includes  that  care,  counsel,  training  and  edu- 
cation which,  under  the  evidence,  the  child  would 
probably  have  received  from  the  parent  and  which 
can  only  be  supplied  by  the  service  of  another  by 
compensation. 2"*  In  one  case  the  court,  on  the 
measure  of  damages  under  the  federal  act,  told  the 
jury  that  they  might  take  into  consideration  "the 
care,  attention,  instruction  and  training  which  one 
of  his  (decedent's)  disposition  and  character  as 
disclosed  by  the  evidence  might  reasonably  be  ex- 
pected to  give  his  children  during  their  minority." 
The  court  further  advised  the  jury  that  "neither 
sympathy,  bereavement,  affection,  love  nor  devo- 
tion, ' '  could  be  considered  as  an  element  of  damage. 
It  was  held  that  the  charges  as  thus  explained  was 
proper.^^  The  damages  to  an  infant  child  under  the 
national  statute,  it  was  held  in  another  case,  includes 
the  reasonable  pecuniary  value  of  the  nurture,  care 
and  admonition  the  child  would  have  received  from 
the  father  during  minority.^*^ 

23.  Michigan  C,  K.  Co.  v.  Vreeland,  227  U.  8.  59,  57  L.  Ed.  417, 
3  N.  C.  C.  A.  807,  Ann.  Cas.  1914  C  176n. 

24.  Michigan  C.  R.  Co.  v.  Vreeland,  227  U.  S.  59,  57  L.  Ed.  417, 
3  N.  C.  C.  A.  807,  Ann.  Cas.  1914  C  176n. 

25.  St.  Louis  &  S.  F.  R.  Co.  v.  DiLke,  112  C.  C.  A.  564,  192  Fed.  306. 

26.  St.  Louis,  S.  F.  &  T.  Ry.  Co.  v.  Gear,  —  Tex.  Civ.  App.  — , 
149  S.  W.  1178. 


160        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

§82.  Pecuniary  Loss  Not  Dependent  Upon  Any 
Legal  Liability  of  the  Employe  to  the  Beneficiaries. 
— The  act  of  Congress  is  for  the  benefit  of  certain 
specified  relatives  in  that  act  mentioned  and  the 
damages  are  such  as  flow  from  the  deprivation  of  the 
pecuniary  benefits  which  the  beneficiaries  might  have 
reasonably  received  if  the  deceased  had  not  died 
from  his  injuries.  The  pecuniary  loss  is  not  de- 
pendent upon  any  legal  liability  of  the  injured  person 
to  the  beneficiary.  That  is  not  the  sole  test.  There 
must,  however,  appear  some  reasonable  expectation 
of  pecuniary  assistance  or  support  of  which  they 
have  been  deprived.^^  In  a  case  against  a  common 
carrier  by  railroad  under  the  federal  act,  there  was 
evidence  that  the  deceased  had  abandoned  his  wife 
and  child  and  had  not  lived  with  them  or  contributed 
to  their  support  for  many  years.  The  trial  court 
instructed  the  jury  that  it  was  the  legal  duty  of  the 
deceased  in  his  lifetime  to  care  for  and  support  his 
wife  and  child  even  though  he  lived  separate  and 
apart  from  them  and  that  the  wife  and  child  had  the 
right  to  recover  damages  for  his  wrongful  death 
independent  of  whether  he  had  contributed  anything 
to  their  support.  The  court  held  this  instruction 
was  wrong  in  that  it  fixed  "legal  duty"  independent 
of  pecuniary  losses  as  a  measure  by  which  the  jury 
should  estimate  the  damages,  instead  of  the 
pecuniary  benefits  which  the  wife  and  child  might 
reasonably  have  received  during  his  lifetime.^^ 

27.  Michigan  C.  R.  Co.  v.  Vreeland,  227  U.  S.  59,  57  L.  Ed.  417, 
3  N.  C.  C.  A.  807,  Ann.  Cas.  1914  C  176n, 

28.  Fogerty  v.  Northern  P.  Ry.  Co.,  —  Wash.  — ,  133  Pac.  609. 


BENEFICIARIES   AND   DAMAGES   FOR   DEATH  161 

§  83.  Alien  Parents  Residing  Abroad  May  Recover 
Under  Federal  Act. — Whether  alien  parents  of  a  per- 
son killed  by  the  negligence  of  another  can  recover 
has  been  the  subject  of  conflicting  decisions  by  the 
courts  of  this  country,  some  holding  that  alien 
parents  are  included  as  beneficiaries  under  suits  giv- 
ing actions  for  death  and  others  holding  that  they 
are  excluded.-''  A  federal  district  court  held  that  the 
Federal  Employers'  Liability  Act  did  not  authorize 
a  recovery  for  the  sole  benefit  of  alien  parents  of  an 
employe,  who  resided  abroad.^''  But  when  this  case 
reached  the  Supreme  Court  of  the  United  States  on 
writ  of  error,  that  court  held  that  such  parents  could 
recover  for  the  death  of  an  employe  in  an  action 
under  the  federal  act.^^  In  so  holding,  Mr.  Justice 
Holmes,  after  referring  to  cases  from  other  jurisdic- 
tions,^^  said :  ' '  We  may  refer  to  these  cases  for  their 
reasoning  without  reproducing  it,  and  need  not  do 
much  more  than  add  that  the  policy  of  the  Em- 

29.  Some  of  the  decisions  affirming  that  alien  beneficiaries  can  re- 
cover, are  the  following:  Mulhall  v.  Fallon,  176  Mass.  266;  Kelly- 
viUe  Coal  Co.  v.  Petraytis,  195  111.  215,  88  Am.  St.  Eep.  193; 
Szymanski  v.  Blumenthal,  3  Pennew.  (Del.)  558;  Eenlund  v.  Commo- 
dore Min.  Co.,  89  Minn.  41,  99  Am.  St.  Eep.  534.  Others  denying  the 
right  of  recovery  are:  Deni  v.  Pennsylvania  E.  Co.,  181  Pa.  525, 
59  Am.  &t.  Eep.  676;  Maiorano  v.  Baltimore  &  O.  E.  Co.,  216  Pa. 
402,  21  L.  E.  A.  (N.  S.)  271;  McMillan  v.  Spider  Lake  SawmiU  & 
Lumber  Co.,  115  Wis.  332,  60  L.  E.  A.  589,  95  Am.  St.  Eep.  947. 

30.  McGovern  v.  PhUadelphia  &  E.  E.  Co.,  209  Fed.  975,  6  N.  C. 
C.  A.  441n. 

31.  McGovern  v.  Philadelphia  &  E.  E.  Co.,  235  U.  S.  389,  —  L. 
Ed.  — ;  accord,  Bombolis  v.  Minneapolis  &  St.  L.  E.  Co.,  —  Minn.  — , 
150   N.  W.   385. 

32.  The  cases  referred  to  were  the  following:  Mulhall  v.  FaUon, 
176  Mass.  266,  54  L.  E.  A.  934,  79  Am.  St.  Eep.  309;  Kellyville 
Coal  Co.  V.  Petraytis,  195  111.  217,  88  Am.  St.  Eep.  191;  Atchison, 
T.  &  S.  F.  E.  Co.  V.  Fajardo,-74  Kan.  314,  6  L.  E.  A.  (N.  S.)  681n. 

Roberts  Liabilities — 11 


162        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

ployers '  Liability  Act  accords  with  and  finds  expres- 
sion in  tlie  universality  of  its  language.  Its  purpose 
is  sometliing  more  than  to  give  compensation  for  the 
negligence  of  railroad  companies.  Even  if  that  were 
its  only  object,  we  might  accept  the  distinction  ex- 
pressed in  Mulhall  v.  Fallon,  supra,  between  the 
duties  imposed  by  a  statute  upon  persons  in  another 
state  and  benefits  conferred  upon  them.  Extra 
territorial  application  would  naturally  not  be  given 
to  the  first,  'but  rights  can  be  offered  to  such  per- 
sons, and  if,  as  is  usually  the  case,  the  power  that 
governs  them  makes  no  objection,  there  is  nothing 
to  hinder  their  accepting  what  is  offered.'  The 
rights  and  remedies  of  the  statute  are  the  means  of 
executing  its  policy.  If  this  'puts  burdens  on  our 
own  citizens  for  the  benefit  of  nonresident  aliens,' 
as  said  by  the  district  court,  quoting  the  Deni  case, 
supra,  it  is  a  burden  imposed  for  wrongdoing  that 
has  caused  the  destruction  of  life.  It  is  to  the  pre- 
vention of  this  that  the  statute  is  directed.  It  is  for 
the  protection  of  that  life  that  compensation  for  its 
destruction  is  given  and  to  those  who  have  relation 
to  it.  These  may  be  wife,  children,  or  parents.  The 
statute,  indeed,  distinguishes  between  them,  but  what 
difference  can  it  make  where  they  may  reside?  It 
is  the  fact  of  their  relation  to  the  life  destroyed  that 
is  the  circumstance  to  be  considered,  whether  we 
consider  the  injury  received  by  them  or  the  influence 
of  that  relation  upon  the  life  destroyed." 

§  84.  No  Recovery  for  Pain  ajid  Suffering  of  De- 
ceased Prior  to  1910  Amendments. — Under  the  fed- 
eral act,  prior  to  the  1910  amendments,  the  benefi- 


BENEFICIARIES   AND   DAMAGES   FOB   DEATH  163 

claries  of  a  deceased  employe  could  not  recover  for 
the  injury  and  pain  suffered  by  the  deceased.  The 
Arkansas  Supreme  Court  sustained  a  verdict  for 
separate  sums  on  two  counts,  the  first  for  pecuniary 
loss  to  the  next  of  kin  and  the  second  for  the  injury 
and  pain  suffered  by  intestate.  At  the  trial  the 
defendant  asked  for  a  ruling  that  the  plaintiff  could 
not  recover  damages  for  pain  under  the  second  count. 
The  state  court  held  that  the  act  of  Congress  was 
supplementary  to  the  state  law  and  that  such  a 
verdict  could  be  upheld  under  the  state  law.  On  writ 
of  error  from  the  United  States  Supreme  Court  to 
the  State  Supreme  Court,  the  national  court  held 
that  the  federal  act  was  exclusive  and  superseded 
the  state  law  as  to  all  employes  employed  in  inter- 
state commerce  and  interstate  carriers  also  engaged 
in  such  commerce,  and  since  the  only  action  given 
by  the  federal  act  was  one  for  the  benefit  of  the  next 
of  kin,  the  ruling  of  the  state  court  was  wrong.  No 
attempt  was  made  in  that  case  to  construe  the  effect 
of  the  1910  amendment  as  the  accident  occuiTed  in 
1909.33 

§  85.  No  Recovery  Under  §  9  (Amendment  1910) 
When  Death  is  Instantaneous. — Where  the  in- 
jury and  death  of  an  interstate  employe  are  so 
simultaneous  that  it  cannot  be  said  that  the  employe 
endured  pain  and  suff'ering,  there  can  be  no  recovery 
under  §  9  (Amendment  1910)  of  the  federal  act 
providing,  that  a  right  of  action  given  to  a  person 

33.  St.  Louis  I.  M.  &  S.  Ey.  Co.  v.  Hesterly,  228  U.  S.  702,  57  L. 
Ed.  1031,  reversing  the  same  case  in  98  Ark.  240;  Garrett  v.  Louis- 
vUle  &  N.  E.  Co.,  117  C.  C.  A.  109,  197  Fed.  715,  3  N.  C.  C.  A.  769, 
4  N.  C.  C.  A.  925u,  aff'd  —  U.  S.  — ,  35  Sup.  Ct.  32. 


164        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

suffering  injury  shall  survive  to  his  personal  rep- 
resentatives for  the  benefit  of  the  beneficiaries  named 
in  §  1.^^  On  the  other  hand,  if  the  employe  lives 
an  appreciable  length  of  time  after  receiving  an 
injury,  even  though  in  a  state  of  unconsciousness, 
his  cause  of  action  survives  under  §  9.^^  In  the 
Shewalter  case  cited  the  Supreme  Court  of  Ten- 
nessee, construing  the  federal  act,  after  comparing 
it  with  the  death  statutes  of  several  states,  held  that, 
if  the  death  of  an  employe  was  instantaneous,  the 
beneficiaries,  through  the  personal  rexjresentative, 
could  recovery  any  and  all  damages  caused  them  by 
the  death,  but  in  order  to  permit  a  recovery  for  addi- 
tional damages,  under  the  survival  amendment,  the 
decedent  must  have  survived  the  action.  In  that 
case  a  father  was  seeking  damages  for  the  death  of 
his  son.  The  court  instructed  the  jury  they  could 
allow  a  reasonable  sum  for  the  pain  and  suffering 
of  the  decedent.  Since  the  evidence  disclosed  that 
the  death  was  instantaneous,  the  court  held  that  the 
instruction  was  erroneous  for  the  reasons  given.  In 
the  other  case  cited,  supra,  the  Supreme  Court  of 
Minnesota  reached  the  same  conclusion  but  held  that 
testimony  showing  that  the  decedent  after  the  injury, 
moaned  and  breathed  for  ten  minutes,  justified  the 
trial  court  in  submitting  the  question  of  survival  of 
his  cause  of  action  to  the  jury.^'^ 

34.  Carolina,  C.  &  O.  Ey.  Co.  v.  Shewalter,  128  Tenn.  363,  6  N.  C. 
C.  A.  445n.  Accord:  Dictum  in  Norfolk  &  W.  E.  Co.  v.  Holbrook, 
235  U.  S.  625. 

35.  Capital  Trust  Co.  v.  Great  Northern  Ey.  Co.,  —  Minn.  — , 
149    N.    W.    14. 

36.  See  also  Dillon  v.  Great  N.  Ey.  Co.,  38  Mont.  485. 


BENEFICIARIES   AND   DAMAGES   FOR   DEATH  1G5 

§  86.  Decisions  of  National  Courts  on  Measure  of 
Damages  Control. — In  actions  under  tlie  Federal 
Employers'  Liability  Act,  the  measure  of  damages 
sanctioned  and  approved  by  the  United  States 
Supreme  Court  controls  the  action  of  all  other  courts 
under  the  act.^"^ 

§87.  Errorless  Instructions  on  Measure  of  Dam- 
ages Under  Federal  Act. — In  an  action  for  damages 
by  an  administrator  for  the  benefit  of  a  mother  of  a 
deceased  employe  of  a  railroad  company,  the 
Supreme  Court  of  North  Carolina  in  a  case  cited  in 
the  notes,^^  approved  the  following  instructions  as 
being  accurate,  correct  and  clear  under  the  federal 
act:  "The  measure  of  damages  in  this  case  is  not  the 
measure  of  damages  obtaining  under  the  state  prac- 
tice, to-wit,  the  pecuniary  value  of  the  life  of  the 
intestate,  during  its  prospective  continuance,  but  is 
the  measure  of  damages  as  fixed  by  the  Federal 
Employers'  Liability  Act  and  is  brought  for  the 
benefit  of  some  certain  person,  to-wit,  in  this  case  the 
mother  by  reason  of  the  death  of  her  son.  It  is  purely 
and  entirely  a  money  or  financial  loss.  How  much 
money  has  the  mother  been  deprived  of  by  the  death 
of  her  son,  computing  the  same  at  its  present  worth 
or  value?  It  is  not  a  question  of  how  much  the  son 
could  have  made  for  his  own  use  had  he  lived  out  his 

37.  Nashville,  C.  &  St.  L.  Ry.  v.  Henry,  158  Ky.  88,  4  N.  C.  C.  A. 
495n,  6  N.  C.  C.  A.  99n,  106n;  Dooley  v.  Seaboard  A.  L.  Ey.  Co., 
163  N.  C.  454,  6  N.  C.  C.  A.  440n,  442n,  452n ;  Hardwick  v.  Wabash 
R,  Co.,  181  Mo.  App.  156.  A  state  law  limiting  the  liability  of  a 
raUroad  company  in  cases  of  death  to  $10,000  does  not  apply  in  an 
action  under  the  Federal  Employers'  Liability  Act.  Devine  v.  Chi- 
cago, R.  I.  &  P.  R.  Co.,  —  111.  — ,  107  N.  E.  595. 

38.  Irvin  v.  Southern  Ry.  Co.,  —  N.  C.  — ,  80  S.  E.  78. 


166        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

allotted  time,  but  the  present  value  of  the  sum  his 
mother  might  reasonably  have  expected  to  receive 
from  his  earnings  during  her  life,  for  the  limit  of 
time  within  which  she  could  expect  to  receive  finan- 
cial aid  from  her  son  is  the  time  which  she  could 
reasonably  be  expected  to  live.  You  must  not  under- 
take to  give  the  equivalent  or  the  value  of  human 
life.  You  will  allow  nothing  for  the  suffering  or 
sorrow  of  either  the  deceased  or  his  mother.  You 
must  not  attempt  to  punish  the  railway  company 
but  endeavor  to  give  a  fair  and  reasonable  pecuniary 
value  for  the  continuation  of  the  life  of  the  deceased 
to  his  mother.  Therefore  you  will  consider  what 
sum  of  money,  paid  at  the  present  time,  in  a  lump 
sum,  would  represent  the  fair  value  of  what  the 
mother  had  a  reasonable  right  to  expect,  under  all 
circumstances,  to  receive  from  the  earnings  of  her 
son,  had  he  lived  until  her  death.  As  a  basis  on 
which  to  enable  you  to  make  your  estimate,  it  is 
proper  for  you  to  consider  the  wages  the  son  was 
receiving,  the  age  and  health  of  the  son,  the  fact 
that  the  son  might  have  married  and  thereby  made 
it  necessary  to  use  all  or  a  part  of  his  earnings  in 
the  support  of  his  own  family;  you  will  consider  the 
habits,  prospect  in  life,  industry,  and  skill  of  the 
son,  the  business  in  which  he  was  engaged,  and  its 
hazards  as  to  life;  you  will  consider  how  much  of 
his  earnings  he  spent  on  himself  or  otherwise,  either 
for  necessities  or  for  other  purposes,  as  distinguished 
from  what  he  spent  on  or  gave  to  his  mother,  if  you 
find  from  the  evidence  that  he  contributed  an5i:hing 
from  his  earnings  to  his  mother,  because  the  part  of 


BENEFICIARIES   AND   DAMAGES   FOR   DEATH  167 

his  wages  that  he  spent  on  himself  or  for  other  pur- 
poses than  that  contributed  to  his  mother,  or  what  in 
the  future  she  might  reasonably  expect  he  could 
contribute,  would  be  entirely  eliminated  from  your 
calculations.  There  is  another  limitation  upon  the 
amount  that  you  will  allow  as  damages,  that  is  this: 
You  will  allow  only  the  present  value  of  what  you 
may  find  the  mother  has  lost  in  money  because  of 
the  death  of  her  son,  for  she  is  getting  now  in  a 
lump  sum  that  which  she  would  have  received  from 
time  to  time  during  a  future  period.  By  this  you 
are  not  to  understand  that  you  are  to  ascertain  the 
number  of  years  that  the  contributions  to  the  mother 
from  her  son  would  probably  continue,  and  then 
multiply  such  number  of  years  by  the  amount  of  such 
probable  yearly  contribution,  but  you  are  to  give  a 
sum  of  money  that  will  represent  the  present  value 
of  such  contributions.  The  evidence  you  have  heard 
as  to  the  probable  duration  of  the  life  of  the  mother, 
based  upon  the  mortality  tables  of  the  insurance 
companies,  is  not  conclusive,  upon  the  question  of 
the  duration  of  her  life.  Such  tables  are  submitted 
to  you,  not  to  control  you,  but  merely  to  guide  you. 
They  are  based  upon  averages,  and  there  is  no  cer- 
tainty that  any  person  will  live  the  average  duration 
of  life.  Now,  if  you  answer  the  first  issue  'yes,'  to- 
wit,  that  the  Southern  Railway  is  chargeable  with 
negligence,  you  should  first  consider  the  question 
of  damages,  without  relation  to  the  question  of 
contributory  negligence.  If  you  find  that  the  plain- 
tiff's intestate  was  guilty  of  contributory  negligence, 
it  would  then  be  your  duty  to  reduce  the  amount  of 


168        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

damages  in  proportion  thereto,  since  the  act  provides 
that  damages  shall  be  diminished  in  proportion  to 
the  amount  of  negligence  attributable  to  the  injured 
employe.  I  instruct  you  that  this  provision  means 
this:  If  you  find  that  the  negligence  of  the  two  is 
equal  (that  is,  that  the  railway  company  was  guilty 
of  negligence  and  the  plaintiff's  intestate  was  guilty 
of  equal  negligence  that  contributed  to  the  injury), 
you  will  reduce  the  damages  one-half.  If  you  find 
that  the  plaintiff's  intestate  was  guilty  of  more 
negligence  than  the  railway  company,  then  the  dam- 
ages should  be  reduced  more  than  one-half.  If  he 
was  guilty  of  less  negligence  than  the  railway  com- 
pany, then  the  damages  should  not  be  reduced  as 
much  as  one-half." 

The  Supreme  Court  of  Oregon  in  another  action 
under  the  federal  act  ^^  specifically  approved  the 
following  instructions  as  being  a  fair,  clear  and 
accurate  declaration  of  the  law  in  guiding  the  jury 
as  to  the  effect  of  contributory  negligence  in  mitigat- 
ing the  damages:  "In  this  connection  you  have  no 
doubt  observed  from  the  testimony,  as  well  as  from 
the  pleadings,  that  the  plaintiff's  participation  in 
the  transaction  complained  of  has  been  alleged  to  be 
negligent  in  character.  Now  the  plaintiff's  negli- 
gence, if  you  find  he  was  negligent,  is  defined  in  the 
same  manner  as  that  of  the  defendant.  If  you  believe 
from  the  evidence  that  he  did  an  act  or  number  of 
acts  which  a  prudent  engineer  would  not  have  done, 
or  if  he  failed  to  do  an  act  or  number  of  acts  which  an 

39.  Pfeiflfer  v.  Oregon,  W.  E.  &  Co.,  —  Ore.  — ,  7  N.  C.  C.  A.  685, 
144  Pac.  762. 


BENEFICIARIES   AND   DAMAGES   FOR   DEATH  ].69 

ordinarily  prudent  engineer  would  have  done  under 
all  the  existing  circumstances,  having  in  view  the 
probable  danger  of  his  receiving  the  injury,  then  I 
charge  you  that  he  is,  with  respect  thereto,  guilty 
of  negligence;  and  if  his  acts,  if  any  you  find,  were 
the  proximate  cause  of  the  injury,  and  if  you  further 
find  that  the  acts,  if  any,  of  the  defendant  and  its 
employes  were  not  the  proximate  cause  of  the  injury, 
then  it  will  be  your  duty  to  find  a  verdict  for  the 
defendant.  And  in  this  connection  if  you  believe 
from  the  evidence  that  the  plaintiff's  injury  was 
caused  partly  by  one  or  more  of  the  negligent  acts 
of  the  defendant,  mentioned  in  the  complaint,  and 
one  or  more  of  the  negligent  acts  of  the  plaintiff, 
as  mentioned  in  the  answer,  then  it  will  be  your  duty 
to  compare  the  same  in  accordance  with  instructions 
which  I  shall  give  you.  In  order  to  make  clear  to 
you  what  is  meant  by  the  comparison  of  negligence, 
declared  by  the  federal  law  to  be  the  duty  of  the 
jury  to  make,  let  me  say  that  your  first  inquiry 
should  be :  Was  the  defendant  guilty  of  negligence  ? 
Your  second  inquiry  should  be:  Was  the  plaintiff 
negligent?  Your  third  inquiry  should  be:  In  what 
degree  did  these  causal  negligences  contribute  to  the 
accident?  And  I  say  to  you,  as  a  matter  of  law,  that 
you  must  determine  what  proportion.  If  the  plain- 
tiff's negligence  contributed  or  caused,  we  will  say, 
the  accident  to  the  extent  of  one-third  of  the  entire 
negligence,  then  the  plaintiff's  damages  would  be 
reduced  by  one-third;  if  to  the  extent  of  one-half, 
then  his  damages  would  be  reduced  by  one-haLf; 
if  to  the  extent  of  two-thirds,  then  his  damages  would 


170        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

be  reduced  by  two-thirds  and  if  bis  negligence  was 
alone  the  cause  of  the  accident,  then  of  course  that 
would  wipe  out  the  damages  and  your  verdict  would 
be  in  favor  of  the  defendant. ' '  ^^ 

§  88.  Erroneous  Instructions  on  Measure  of  Dajn- 
ages  Under  Federal  Act. — A  trial  court  in  an  action 
for  damages  under  the  federal  act  charged  the  jury 
that  "where  the  persons  suffering  injury  are  the 
dependent  widow  and  infant  children  of  a  deceased 
husband  and  father,  the  pecuniary  injury  suffered 
would  be  much  greater  than  where  the  beneficiaries 
were  all  adults  or  dependents  who  were  mere  next 
of  kin."  Condemning  this  instruction  as  being  im- 
proper and  constituting  reversible  error,  the  United 
States  Supreme  Court,  by  Mr.  Justice  McReynolds, 
said:  "It  was  proper,  therefore,  to  charge  that  the 
jury  might  take  into  consideration  the  care,  atten- 
tion, instruction,  training,  advice  and  guidance 
which  the  evidence  showed  he  reasonably  might  have 
expected  to  give  his  children  during  their  minority, 
and  to  include  the  pecuniary  value  thereof  in  the 
damages  assessed,  but  there  was  nothing — indeed 
there  could  be  nothing — to  show  a  hypothetic  injury 
which  might  have  befallen  some  identified  adult 
beneficiary  or  dependent  next  of  kin.  The  ascer- 
tained circumstances  must  govern  in  every  case. 
There  was  no  occasion  to  compare  the  rights  of  the 
actual  beneficiary  with  those  of  supposed  depend- 
ents ;  and  we  think  the  trial  court  plainly  erred  when 

40.  Instructions  referring  the  jury  to  the  pleadings  have  been 
held  by  some  courts  to  be  erroneous  and  this  part  of  the  instructions, 
in  such  jurisdictions,  should  be  given  to  the  jury  in  other  instruction 
and  not  by  referring  them  to  the  pleadings. 


BEaSTEFIClARIES   AND   DAMAGES   FOR   DEATH  171 

it  declared  that  where  the  persons  suffering  injury 
are  the  dependent  widow  and  infant  children  of  a 
deceased  husband  and  father,  the  pecuniary  injury 
suffered  would  be  much  greater  than  where  the 
beneficiaries  were  adults  or  dependents  who  were 
mere  next  of  kin.  This  gave  the  jury  occasion  for 
indefinite  speculation  and  rather  invited  the  con- 
sideration of  elements  wholly  irrelevant  to  the  true 
problem  presented  and  to  indulge  in  conjecture  in- 
stead of  weighing  established  facts.  The  facts 
brought  out  during  the  course  of  the  trial  were  ade- 
quate to  constitute  a  strong  appeal  to  the  sympathy 
engendered  in  the  minds  of  the  jurors  by  the  mis- 
fortune of  a  widow  and  her  dependent  children.  In 
such  circumstances  it  was  especially  important  that 
the  charge  should  be  free  from  anything  which  they 
might  construe  as  a  permission  to  go  outside  of  the 
evidence.  It  is  the  duty  of  the  court  in  its  relation 
to  the  jury  to  protect  the  parties  from  unjust  verdicts 
arising  from  impulse,  passion  or  prejudice  or  from 
any  other  violation  of  lawful  rights.  "^^  In  another 
action  under  the  federal  act  where  there  was  evidence 
tending  to  show  that  the  deceased  employe  was 
guilty  of  contributory  negligence,  the  court  in- 
structed the  jury  that  if  they  found  the  defendant 
guilty  of  negligence,  then  in  assessing  damages  they 
had  a  right  to  take  into  consideration  all  of  the 
testimony  offered  upon  that  question  and  allow  such 
damages  as  they  might  deem  fair  and  just  compensa- 
tion with  reference  to  the  pecuniary  injury  resulting 

41.  Norfolk  &  W.  R.  Co.  v.  Holbiook,  —  U.  S.  — ,  35  Sup.  Ct. 
143,  reversing  same  ease  reported  in  (C.  C.  A.),  215  Fed.  687. 


172        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAH^ROADS 

from  the  plaintiff's  intestate  to  Ms  widow,  and  that, 
in  estimating  the  damages,  they  had  a  right  to  take 
into  consideration  whatever  they  might  believe  from 
the  evidence  the  widow  might  have  reasonably 
expected  in  a  pecuniary  way  from  the  continued  life 
of  the  intestate.  Condemning  this  instruction  as 
being  erroneous  under  the  federal  act,  one  of  the 
Illinois  Appellate  Courts  said:  ''This  instruction 
wholly  ignored  the  question  of  contributory  negli- 
gence and  the  duty  of  the  jury  to  consider,  under 
the  statute  above  referred  to,  a  diminution  of  dam- 
ages, and  the  giving  of  the  same  was  for  that  reason 
a  reversible  error."  ^^  In  an  action  by  an  admin- 
istrator for  the  benefit  of  a  wife  and  two  infant 
children  under  the  federal  act,  the  jury  was  in- 
structed on  the  measure  of  damages  that  they  might 
consider  the  fact  that  the  widow  was  deprived  of  her 
husband's  companionship  and  association,  and  the 
loss  of  home  ties  in  a  way  to  indicate  that  such 
matters  constitute  a  pecuniary  loss.  The  court 
further  told  the  jury  that  the  law  attempted  to  be 
liberal  with  the  victims  of  such  an  accident.  The 
instruction  was  condemned  because  it  did  not 
attempt  to  direct  the  jury  to  distinguish  between 
support  and  companionship.^^  A  charge  to  a  jury 
in  an  action  under  the  federal  act  stating  that  the 
law  had  no  fixed  standard  by  which  to  ascertain  the 
loss  and  that  the  sole  question  for  the  jury  to  deter- 
mine was  what  loss  the  wife  and  child  suffered,  was 
declared  to  be  erroneous  for  the  reason,  that  the  law 

42.  HaU  V.  Vandalia  E.  Co.,  116  111.  App.  12. 

43.  New  York  C.  &  St.  L.  R.  Co.  v.  Niebel  (C.  C.  A.),  214  Fed.  952. 


BENEFICIARIES   AND   DAMAGES   FOR  DEATH  173 

has  fixed  a  standard  of  damages  and  that  standard  or 
measure  is  the  financial  benefit  which  might  reason- 
ably have  been  expected  if  the  deceased  employe 
had  not  been  killed  through  the  negligence  of  the 
defendant.'*^  A  trial  court,  in  an  action  under  the 
federal  act,  instructed  the  jury  as  follows:  "The 
measure  of  damages  for  loss  of  life  of  plaintiff's 
intestate  is  the  present  value  of  his  net  income  and 
this  is  to  be  ascertained  by  deducting  his  net  gross 
income  and  then  estimating  the  present  value  of  the 
accumulation  from  such  net  income,  based  upon  this 
expectation  of  life."  Condemning  this  instruction 
as  being  erroneous  under  the  federal  act,  the 
Supreme  Court  of  North  Carolina  said:  "The  rule 
for  the  assessment  of  damages  laid  down  by  his 
honor,  while  following  the  decisions  of  this  court 
in  the  construction  of  Lord  Campbell's  Act,  is 
erroneous  as  applied  to  the  Federal  Employers' 
Liability  Act  as  construed  by  the  Supreme  Court 
of  the  United  States.  In  American  E.  R.  v.  Didrick- 
sen,  227  U.  S.  145,  33  Sup.  Ct.  224,  57  L.  Ed.  456, 
(3  N.  C.  C.  A.  809n,  831n),  that  court  says:  'The 
cause  of  action  which  was  created  in  behalf  of  the 
injured  employe  would  not  survive  his  death,  nor 
pass  to  his  representatives.  But  the  act,  in  case  of 
the  death  of  such  an  employe  from  his  injury, 
creates  a  new  and  distinct  right  of  action  for  the 
benefit  of  the  dependent  relatives  named  in  the 
statute.  The  damages  recoverable  are  limited  to 
such  loss  as  results  to  them  because  they  have  been 
deprived  of  a  reasonable  expectation  of  pecuniary 

44.  Fogerty  v.  Northern  Pac.  Ey.  Co.,  —  Wash.  — ,  133  Pac.  609. 


174        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

profits  by  tlie  wrongful  death  of  tlie  injured  employe. 
The  damage  is  limited  strictly  to  the  financial  loss 
thus  sustained.'  This  language  was  quoted  with 
approval  in  Eailroad  v.  McGinnis,  228  U.  S.  175,  33 
Sup.  Ct.  427,  57  L.  Ed.  785,  and  the  court  adds  in  the 
last  case:  'In  a  series  of  cases  lately  decided  by  this 
court,  the  act  in  this  aspect  has  been  construed  as 
intended  only  to  compensate  the  surviving  relatives 
of  such  a  deceased  employe  for  the  actual  pecuniary 
loss  resulting  to  the  particular  person  or  persons 
for  whose  benefit  an  action  is  given.  The  recovery 
must  therefore  be  limited  to  compensate  those  rela- 
tives for  whose  benefit  the  administrator  sues,  as 
are  shown  to  have  sustained  some  pecuniary 
loss.'  "^5 

§  89.  Beneficiaries  May  Recover  for  the  Suffering 
of  Deceased  as  Well  as  for  His  Death. — Since  the 
amendment  of  1910,  which  provides  that  a  cause  of 
action  accruing  to  the  injured  employe  survives  for 
the  benefit  of  the  beneficiaries  named  in  the  statute, 
if  the  employe  is  injured  and  subsequently  dies,  it 
has  been  held  by  a  Federal  Circuit  Court  of  Appeals 
that  the  beneficiaries  may  not  only  recover  their 
damages  for  the  death,  but  in  the  same  action  a 
recovery  may  be  had  in  addition  thereto  for  the 
damages,  due  to  the  injury,  incurred  by  the  decedent 
himself  in  his  lifetime.  A  railroad  employe  was 
injured  in  August,  1910,  by  reason  of  the  negligence 
of  the  railroad  company.  He  brought  suit  for  the 
injuries  under  the  federal  act  and  died  shortly  after 

45.  Dooley  v.  Seaboard  A.  L.  Ey.  Co.,  163  N.  C.  454,  6  N.  C.  C.  A. 
440n,  442n,  452ii. 


BENEFICIARIES    AND   DAMAGES   FOR   DEATH  175 

the  commencement  of  tlie  action.  The  suit  was 
revived  in  the  name  of  the  personal  representative 
and  damages  were  alleged  to  the  deceased  by  reason 
of  the  injury  and  also  damages  by  reason  of  the 
death  to  the  widow  and  children.  A  recovery  for 
one  sum  was  had  for  damages  to  the  deceased  in  his 
lifetime  and  for  another  sum  for  the  damages  to  his 
widow  and  child  by  reason  of  his  death,  both  being 
included  in  the  same  verdict.  The  point  was  made 
that  such  double  damages  could  not  be  recovered, 
but  the  court  held  that  the  recovery  was  proper.  As 
this  is  one  of  the  first  cases  in  which  this  amendment 
of  1910  was  construed,  we  quote  the  court's  language 
in  full:  *'The  question  remains  whether  there  is 
substantial  basis  for  the  contention  of  the  plaintiff 
in  error  to  the  effect  that  recovery  cannot  be  had 
in  the  same  action  both  for  the  injury  sustained  by 
the  deceased  and  for  his  death,  even  where,  as  here, 
the  action  is  brought  by  the  representative  of  the 
deceased  for  the  benefit  of  all  of  the  beneficiaries. 
But  for  the  amendment  of  the  act  of  April  22,  1908, 
the  position  would  be  well  taken,  for  that  act  con- 
tained no  provision  for  the  survival  of  the  cause  of 
action  thereby  given  to  the  injured  employe  for  per- 
sonal damages  sustained  by  him.  But  on  the  5th  day 
of  April,  1910,  Congress  amended  the  act  of  April 
22,  1908,  by  changing  §  6  thereof,  and  by  adding  the 
following  section  as  §  9 :  '  Sec.  9.  That  any  right 
of  action  given  by  this  act  to  a  person  suffering 
injury  shall  survive  to  his  or  her  personal  repre- 
sentative, for  the  benefit  of  the  surviving  widow  or 
husband  and  children  of  such  employe,  and  if  none, 


176        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

then  of  such  employe's  parents,  but  in  such  cases 
there  shall  be  only  one  recovery  for  the  same  injury. ' 
Act  April  5,  1910,  c.  143,  36  Stat.  291  (Fed.  Stat. 
Am.  1912^  Supp.  p.  335).  It  thus  appears  that  Con- 
gress by  the  amendment  of  1910  provided  for  the 
survival  of  the  cause  of  action  given  by  the  act 
of  April  22,  1908,  to  the  employe  for  his  personal 
injuries,  and  conferred  that  cause  of  action,  not  upon 
the  estate  of  the  injured  employe  in  the  event  of  his 
death,  but,  first,  upon  the  surviving  widow  or  hus- 
band and  children  of  such  employe,  with  the  further 
provision  that  4n  such  cases  there  shall  be  only  one 
recoveiy  for  the  same  injury.'  "VVe  are  of  the 
opinion  that  the  plain  meaning  of  these  statutory 
provisions  is  that,  where  one  receives  an  injury  in 
the  employment  of  a  railroad  company  under  such 
circumstances  as  entitles  him  or  her,  as  the  case 
may  be,  by  virtue  of  the  statute,  to  recover  from 
the  company  damages  therefor,  and  that  such  injury 
results  in  the  death  of  the  injured  person,  damages 
resulting  from  the  personal  suffering,  and  from  such 
death,  not  only  may  be  recovered  by  the  personal 
representative  of  the  deceased  in  one  action,  but 
must  be  recovered  in  one  action  only,  if  at  all,  for 
the  benefit  of  those  specified  in  the  statute.  It 
results  that  the  judgment  in  the  present  case  must 
be,  and  is,  affirmed.  "^^ 

§  90.  Death  Must  be  Result  of  Negligence  Before 
Beneficiaries  Can  Recover  Under  §  1,  but  Not  Under 
§  9. — Under  the  first  section  of  the  Act  of  1908,  it  is 
provided  that  the  beneficiaries  can  recover  ' '  for  such 

46.  Northern  P.  Ry.  Co.  v.  Maerkl,  117  C.  C.  A.  237,  198  Fed.  1. 


BENEFICIARIES    AND   DAMAGES   FOR   DEATH  177 

death  *  *  *  resulting  from  negligence"  so  that 
the  death  must  be  proven  to  have  resulted  from  the 
negligence.  If  an  employe  is  injured  while  engaged 
in  interstate  commerce  aiid  thereafter  dies  from 
other  causes,  it  is  quite  clear  from  the  language  of 
the  statute  that  the  beneficiaries  cannot  recover 
damages  under  the  first  section.  But  they  may,  how- 
ever, through  the  personal  representative,  recover 
damages  under  §  9  which  would  include  the  damages 
recoverable  by  the  deceased  in  his  lifetime.  Section 
9  does  not  require  that  the  death,  upon  which  the 
cause  of  action  survives,  result  from  the  negligent 
act.  The  disputed  proposition  among  commentators 
whether  the  beneficiaries  could  recover  under  both 
§  §  1  and  9,  in  view  of  the  clause  in  the  statute  ' '  there 
sliall  be  only  one  recovery  for  the  same  injury"  has 
been  decided  in  the  affirmative.'*'^ 

§  91,  Loss  of  Prospective  Gifts — Contributions 
During  Lifetime  of  Deceased  Employe. — The 
Supreme  Court  of  the  United  States,  in  the  leading 
case  which  discusses  the  measure  of  damages  under 
the  Federal  Employers'  Liability  Act,  declared  that 
the  statute  on  this  question  was  essentially  identical 
with  the  first  act  which  ever  provided  for  a  cause 
of  action  arising  out  of  the  death  of  a  human  being, 
that  of  9  and  10  Victoria,  known  as  the  Lord  Camp- 
bell Act."*^  Under  such  statutes  questions  have  fre- 
quently arisen  as  to  whether  parents,  for  instance, 

47.  Northern  P.  Ey.  Co.  v.  Maerkl,  117  C.  C.  A.  237,  198  Fed.  1; 
St.  Louis  &  S.  F.  K.  Co.  v.  Conarty,  106  Ark.  421,  6  N.  C.  C.  A.  202n, 
447n. 

48.  Michigan  C.  E.  Co.  v.  Vreelaud,  227  U.  S.  59,  57  L.  Ed.  417, 
3  N.  C.  C.  A.  807,  Ann.  Cas.  1914  C  176n. 

Koberts  Liabilities — 12 


178        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

in  cases  of  the  death  of  adult  children,  or  adult 
children  in  the  cases  of  death  of  a  parent  or  the  next 
of  kin  mentioned  in  the  third  class  of  the  federal  act, 
may  recover  for  the  loss  of  prospective  gifts.  Some 
courts  have  held  it  necessary  for  the  plaintiff  to 
show  that  the  deceased,  during  his  life  gave  assist- 
ance to  the  beneficiaries  by  way  of  money,  services 
or  other  material  benefits,  which,  in  reasonable 
probability,  would  have  continued  but  for  the 
death.'*'^  Other  courts  have  sustained  a  finding  that 
there  was  reasonable  expectation  of  the  pecuniary 
benefit,  although  the  evidence  fell  short  of  showing 
that  assistance  was  actually  rendered  before  the 
death.^o 

The  Supreme  Court  of  North  Carolina  passed  on 

49.  HiUebrand  v.  Standard  Biscuit  Co.,  139  Cal.  233;  Fordyse  v. 
McCants,  51  Ark.  509,  4  L.  E.  A,  296,  14  Am.  St.  Eep.  69;  Atchison 
T.  &  S.  F.  E.  Co.  V.  Brown,  26  Kan.  443 ;  Cherokee  &  P.  Coal  &  Mining 
Co.  V.  Limb,  47  Kan.  469 ;  Eichmond  v.  Chicago  &  W.  M.  Ey.  Co.,  87 
Mich.  374;  Houston  &  T.  C.  Ey.  Co.  v.  Cowser,  57  Tex.  293;  Lehigh 
Iron  Co.  V.  Eupp,  100  Pa.  95 ;  Standard  Light  &  Power  Co.  v.  Muncey, 
33  Tex.  Civ.  App.  416;  St.  Louis  M.  &  S.  E.  E.  Co.  v.  Garner,  76  Ark. 
555;  Colorado  C.  &  I.  Co.  v.  Lamb,  6  Colo.  App.  255;  LouisvUle  N. 

A.  &  C.  Ey.  Co.  V.  Weight,  134  Ind.  509;  Diebold  v.  Sharpe,  19  Ind. 
App.  474;  McKay  v.  New  England  Dredging  Co.,  92  Me.  454;  Green- 
wood V.  King,  82  Neb.  17 ;  Holmes  v.  Pennsylvania  E.  Co.,  220  Pa.  189, 
123  Am.  St.  Eep,  685 ;  St.  Louis  S.  W.  Ey.  Co.  v.  Huey,  —  Tex.  Civ, 
App,  — ,  130  S.  W.  1017;  Fritz  v.  Western  U.  T.  Co.,  25  Utah  263; 
Schnatz  v.  Philadelphia  &  E.  E.  Co.,  160  Pa.  602;  San  Antonio  &  A. 
P.  Ey.  Co.  v.  Long,  87  Tex.  148,  24  L.  E.  A.  637;  Anderson  v.  Chicago, 

B.  &  Q.  E.  Co.,  35  Neb.  95 ;  Ehoads  v.  Chicago  &  A.  Ey.  Co.,  227  lU, 
328,  11  L.  E.  A.  (N.  S.)  623,  10  Ann.  Cas.  Ill;  Wabash  E.  Co.  v. 
Cregan,  23  Ind.  App.  1 ;  Chicago  &  A.  Ey.  Co.  v.  Shannon,  43  111.  338. 

50.  Seiben  v.  Great  N.  Ey.  Co.,  76  Minn.  269;  Hopper  v.  Denver 
&  E.  G.  E.  Co.,  84  C.  C,  A,  21,  155  Fed.  273,  6  N.  C,  C,  A,  442n; 
Pierce  v.  Conners,  20  Colo.  178,  47  Am.  St.  Eep.  279 ;  Gibson,  etc.,  Co. 
V.  Sharpe,  50  Colo.  321;  Swift  &  Co.  v.  Johnson,  71  C.  C.  A.  619, 
138  Fed.  867,  1  L.  E.  A.   (N.  S.)   1161n. 


BENEFICIARIES   AND   DAMAGES   FOR   DEATH  179 

this  question  under  the  Federal  Employers'  Liability 
Act  and  held  that  the  father  of  a  brakeman  23  years 
of  age,  unmarried,  strong,  healthy,  of  good  habits 
was  entitled  to  damages  although  the  proof  did  not 
show  that  the  son  had  contributed  anything  to  his 
support  since  reaching  his  majority.^  ^  In  that  case, 
the  evidence  disclosed  that  the  father  was  employed 
by  another  company  and  earning  good  wages;  that 
at  the  time  of  the  son's  death  he  was  not  dependent 
upon  the  son;  but  testified  that  he  might  be  in  a  few 
years  if  the  son  had  lived.  The  son  began  to  work 
for  himself  when  he  was  21  years  old,  and  had  given 
his  father  money  prior  to  reaching  his  majority  but 
not  since.  The  son  came  home  about  every  six 
weeks.  There  was  no  evidence  that  he  had  given 
his  father  any  pecuniary  assistance  since  reaching 
his  majority.  The  court  held  that  these  facts  sus- 
tained a  finding  that  the  father  had  a  reasonable 
expectation  of  pecuniary  benefit  from  the  continu- 
ance of  the  life  of  the  son,  and  that  a  motion  for  a 
judgment  of  nonsuit  was  properly  denied.^^ 

51.  Dooley  v.  Seaboard  A.  L.  Ey.  Co.,  163  N.  C.  454,  6  N.  C.  C.  A. 
440n,  442n,  452ii. 

52.  The  court  based  its  decision  upon  the  following  cases :  Franklin 
V.  S.  E.  E,  Co.,  4  Hurl.  &  N.  (Eng.)  511;  DoUon  v.  S.  E.  Ey.  Co., 
4  C.  B.  N.  S.  (Eng.)  303;  Taff  Ey.  Co.  v.  Jenkins,  A.  C.  Eng.  Cas., 
construing  the  Lord  Campbell  Act;   and  Hopper  v.  Denver  &  E.  G. 

E.  Co.,  84  C.  C,  A.  21,  155  Fed.  273,  6  N.  C.  C.  A.  442n.  The  cases  of 
Michigan  C.  E.  Co.  v.  Vreeland,  227  U.  S.  509,  57  L.  Ed.  417,  3 
N.  C.  C.  A.  807,  Ann.  Cas.  1914  C  176n;  American  E.  Co.  v.  Didricksen, 
227  U.  S.  145,  57  L.  Ed.  456,  3  N.  C.  C.  A.  809n,  831n ;  Gulf,  C.  &  St. 

F.  Ey.  Co.  V.  McGinnis,  228  U.  S.  173,  57  L.  Ed.  785,  3  N.  C.  C.  A. 
806,  4  N.  C.  C.  A.  926n  were  also  cited  and  quoted  from  in  the  same 
opinion. 


180        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

§  92.  The  Term  "Next  of  Kin"  Construed  to  Mean 
Illegitimate  Children— Conflicting  Decisions.— The 
Supreme  Court  of  North  Carolina  in  a  majority 
opinion,  Judge  Brown  and  Hoke  dissenting,  held 
that  the  term  "next  of  kin"  in  the  first  section  of 
the  Federal  Employers'  Liability  Act  included  an 
illegitimate  child  and  that  a  suit  could  be  maintained 
by  an  administrator  for  the  death  of  an  illegitimate 
son  whose  mother  was  dead  for  the  benefit  of  the 
mother's  legitimate  children  who  were  dependent 
upon  the  deceased  employe.^^  In  the  majority 
opinion  the  court  conceded  that  the  general  rule  was 
to  the  contrary,  but  that  in  view  of  a  statute  of  the 
state  of  North  Carolina,  which  declares  that  illegit- 
imate children  of  a  mother  shall  be  considered 
legitimate  as  between  themselves  and  that  their 
estates  shall  descend  and  be  distributed  as  if  they 
had  been  born  in  lawful  wedlock  and  that  in  the 
event  of  the  death  of  any  such  child,  without  chil- 
dren, his  estate  shall  be  distributed  among  his  mother 
and  such  other  persons  as  would  be  next  of  kin  as 
if  all  the  children  had  been  bom  in  lawful  wedlock, 
an  action  for  damages  under  the  federal  act  was 
maintainable.  Judge  Brown  in  the  dissenting 
opinion  held  that  the  majority  opinion  was  in  con- 
flict with  a  prior  decision  of  the  Supreme  Court  of 
the  United  States,  in  which  it  was  held  that  nothing 
in  the  state  statute  for  the  distribution  of  personal 
property  can  affect  the  right  of  the  childless  widow 
of  an  interstate  railway  employe,  who  was  fatally 
injured,  to  the  entire  net  proceeds  of  a  judgment  for 

53.  Kenney  v.  Seaboard  A.  L.  Ey.  Co.,  —  N.  C.  — ,  82  S.  E.  968. 


BENEFICIARIES   AND   DAMAGES   FOR   DEATH  181 

the  resultant  damages,  although  under  the  state  law 
the  parents  would  have  shared  in  the  distribution.'^"* 
It  was  also  contended  in  the  dissenting  opinion  that 
in  the  construction  of  the  laws  of  Congress,  the  rules 
of  the  common  law  furnished  the  true  guide,  and  that 
since  under  the  common  law  the  beneficiaries  could 
not  be  termed  to  be  "next  of  kin,"  the  statute  of 
North  Carolina  could  not  affect  a  recovery  under 
the  federal  act.^^  The  Kentucky  Court  of  Appeals, 
in  a  suit  under  the  federal  act,  reached  a  different 
conclusion  from  the  majority  opinion  in  the  Kenney 
case.  It  was  held  by  that  court,  that  the  deceased 
railroad  employe,  who  was  an  unmarried  man  born 
out  of  wedlock,  had  no  next  of  kin  and  that  his 
father's  widow  and  children,  although  dependent 
upon  him  as  that  term  is  construed  under  the  federal 
act,  were  not  beneficiaries  under  the  statute.^^ 

§  93.  Cases  Declaring  the  True  Measure  of  Dam- 
ages and  Approved  by  the  United  States  Supreme 
Court. — In  Michigan  Central  R.  Co.  v.  Vreeland,^^ 
which  is  the  leading  case  upon  the  question  of  the 
measure  of  damages  in  cases  of  death  under  the 
Federal  Employers'  Liability  Act,  the  Supreme 
Court  of  the  United  States  laid  down  some  general 
rules  as  to  the  measure  of  damages  and  cited  with 

54.  Taylor  v.  Taylor,  232  U.  S.  363,  58  L.  Ed.  638,  6  N.  C.  C.  A. 
436. 

55.  To  sustain  this  proposition  the  following  cases  were  cited: 
United  States  v.  American  Tobacco  Co.,  221  U.  S.  106,  55  L.  Ed. 
663 ;  Western  U.  Tel.  Co.  v.  Call  Pub.  Co.,  181  U.  S.  92,  47  L.  Ed.  765. 

56.  Cincinnati,  N.  O.  &  T.  P.  Ey.  Co.  v.  Wilson's  Adm'r,  157 
Ky.  460. 

ST.  Michigan  C.  R.  Co.  v.  Vreeland,  227  U.  S.  59,  57  L.  Ed.  417, 
3  N.  C.  C.  A.  807,  Ann.  Cas.  1914  C  176n. 


182        INJURIES  TO  INTERSTATE  EMPLOYES  ON  EAILEOADS 

approval  cases  from  various  courts  in  wliicli  it  was 
held  that  the  rules  were  properly  announced  by  the 
courts  in  those  cases.^^  In  view  of  the  conflicting 
rulings  of  the  courts  of  the  several  states  as  to  the 
measure  of  damages  under  death  statutes,  due  no 
doubt  to  the  different  language  of  the  statutes  of 
the  several  states,  and  in  view  of  the  further  fact 
that  such  statutes  do  not  apply  and  are  superseded 
by  the  federal  act  as  to  interstate  employes,  these 
cases  approvingly  cited  by  the  United  States 
Supreme  Court  on  this  question,  are  of  value  to  the 
practitioner  and  the  courts  in  ascertaining  the  proper 
rules  and  standards  in  determining  the  measure  of 
damages  to  the  various  beneficiaries  named  in  the 
federal  act. 

In  Davis  v.  Guamieri,  cited  in  the  notes,  the  court 
instructed  the  jury  as  follows:  "In  this  case  the 
plaintiff's  damages,  if  any,  should  be  a  fair  and  just 
compensation  for  the  pecuniary  injury  resulting  to 
the  husband  and  children  from  the  death  of  Angela 
Guamieri.  In  no  case  can  the  jury,  in  estimating 
the  damages,  consider  tlie  bereavement,  mental 
anguish  or  pain  suffered  by  the  living  for  the  dead. 

58.  Blake  v.  Midland  Ey.  Co.,  18  Q.  B.  (Eng.)  93,  109;  Seward 
V.  Vera  Cruize,  10  App.  Cas.  59;  Illinois  C.  R.  Co.  v.  Barron,  5  Wall 
(U.  S.)  90,  105,  106,  18  L.  Ed.  591;  Davis  v.  Guamieri,  45  Ohio  St. 
470,  4  Am.  St.  Rep.  564;  Hurst  v.  Detroit  City  Ry.  Co.,  84  Mich. 
539,  545,  3  N.  C.  C.  A.  778;  Monroe  v.  Pacific  Dredging  Co.,  84  Cal. 
515,  18  Am.  St,  Rep.  248;  Tilley  v.  Hudson  R.  R.  Co.,  24  N.  Y.  471, 
29  N.  Y.  252;  Schaub  v.  Hannibal  St.  J.  Ry.  Co.,  106  Mo.  74; 
Atchison,  T.  &  S.  F.  Ry.  Co.  v.  Wilson,  1  C.  C.  A.  25,  48  Fed.  57; 
Lett  V.  Railway,  11  Out.  App.  (Can.)  1;  Pennsylvania  R.  Co.  v. 
Goodman,  62  Pa.  329,  339;  Louisville  N.  A.  &  C.  Ry.  Co.  v.  Rush, 
127  Ind.  545. 


BENEFICIARIES    AND   DAMAGES   FOR   DEATH  183 

The  damages  are  exclusively  for  a  pecuniary  loss, 
not  a  solace.  The  reasonable  expectation  of  what 
the  husband  and  children  might  have  received  from 
the  deceased,  had  she  lived,  is  a  proper  subject  for 
the  consideration  of  the  jury,  if  they  find  for  the 
plaintiff.  What  the  husband  and  children  might 
reasonably  expect  to  receive  by  reason  of  the  services 
of  this  woman  in  a  pecuniary  point  of  view,  is  to  be 
taken  into  account  in  determining  the  amount  of 
damages,  if  you  find  for  the  plaintiff.  It  should  be 
said  that  it  is  the  present  worth  as  a  gross  sum  in 
money,  for  the  loss  of  the  services  of  this  woman, 
that  you  are  to  find,  if  you  find  a  loss.  It  is  that  sum 
which  in  money  is  a  compensation  for  what  you  find 
this  woman  would  reasonably  have  saved  for  her 
family.  Of  course,  in  determining  this,  these  things 
are  all  to  be  considered;  that  is,  the  age,  health, 
probability  of  length  of  life,  or  death,  if  she  had 
not  died  from  taking  this  drug."  The  court  held 
that  this  instruction  was  not  open  to  the  objection 
of  counsel  that  the  term  ''services  of  the  family" 
included  not  only  benefits  financially,  but  also  the 
companionship  to  the  husband  and  children,  instruc- 
tion by  way  of  culture,  moral  training  and  other 
elements  of  like  character,  which  are  not  within  the 
rule  of  pecuniary  compensation.  The  court  held  that 
the  instruction  gave  a  sound,  clear  and  concise  state- 
ment of  the  true  rule  of  damages  applicable  to  the 
case. 

In  Munro  v.  Pacific  Coast  Dredging  Company, 
cited,  supra,  with  approval  by  the  Supreme  Court 
of  the  United  States,  the  court  gave  to  the  jury  the 


184        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

following  two  instructions:  "No.  3.  If  your  verdict 
shall  be  for  the  plaintiff,  such  damages  may  be  given 
by  you  as,  under  all  the  circumstances  of  the  case, 
may  be  just.  And  in  determining  the  amount  of  such 
damages,  you  have  the  right  to  take  into  considera- 
tion the  pecuniary  loss,  if  any,  suffered  by  the  mother 
of  Michael  Stanton  by  his  death,  if  you  find  that  his 
mother  is  living.  And  the  loss  which  the  plaintiff 
is,  in  such  a  case  as  this,  entitled  to  recover,  is  what 
the  deceased  would  have  probably  earned  and 
accumulated  by  his  labor  in  his  business  or  calling 
during  the  residue  of  his  life,  and  which  would  have 
gone  to  the  benefit  of  his  mother,  or  heirs,  or  personal 
representative,  taking  into  consideration  his  age, 
health,  habits  of  industry,  ability  and  disability  to 
labor,  and  the  probability  of  his  length  of  life.  No. 
4.  I  further  instruct  you  if,  from  the  evidence,  you 
should  find  for  the  plaintiff,  then  the  measure  of 
damages  is  not  alone  the  pecuniary  loss  and  injury 
sustained  by  the  mother  in  the  loss  of  her  son,  as 
just  complained,  but  in  assessing  the  damages  given, 
you  may,  in  addition,  take  into  consideration  the 
sorrow,  grief  and  mental  suffering  occasioned  by 
his  death,  to  his  mother,  together  with  the  loss,  if 
any,  sustained  by  her  in  being  deprived  of  the  com- 
fort, society,  support  and  protection  of  the  deceased 
by  reason  of  his  death."  The  court  in  that  case, 
after  reviewing  the  English  cases  under  the  Lord 
Campbell  Act,  held  that  in  a  suit  by  a  parent  for 
the  death  of  a  child,  recovery  can  only  be  had  for 
the  pecuniary  loss  which  the  mother  might  have  sus- 


BENEFICIARIES    AND   DAMAGES   FOR   DEATH  185 

tained,  and  that  Instniction  No.  4  was  erroneous 
and  should  not  have  been  given. 

In  Louisville,  N.  A.  &  Corydon  Railroad  Company 
V.  Rush,  127  Ind.  545,  also  cited  with  approval  in 
the  Vreeland  case,  the  court  gave  to  the  jury  this 
instruction  in  a  case  where  the  father  was  suing  for 
the  death  of  a  seven-year  old  child:  "In  any  form 
of  verdict  you  may  adopt,  you  are  required  to  state 
in  writing  such  sum  of  money  as  you  assess  the 
plaintiff's  damages  at,  in  the  event  that  he  may, 
under  the  law,  be  entitled  to  recover  under  the  facts 
as  found  by  you.  I,  therefore,  instruct  you  that  in 
estimating  and  considering  the  amount  of  his  dam- 
ages you  can  only  take  into  consideration  the 
pecuniary  injury,  if  any,  that  the  plaintiff  has  sus- 
tained by  the  loss  of  services  of  the  deceased  from 
the  time  of  her  death  until  she  would  have  reached 
the  age  of  twenty-one  years  if  she  had  lived.  In 
other  words,  the  proper  measure  of  damages  is  the 
pecuniary  value  of  the  child 's  services  from  the  time 
of  her  death  until  she  would  have  attained  her 
majority,  in  connection  with  her  prospects  in  life, 
less  her  support  and  maintenance.  You  are  not  at 
liberty  to  consider  the  fact,  if  it  be  a  fact,  that  the 
plaintiff  has  been  deprived  of  the  happiness,  comfort 
and  society  of  his  daughter,  nor  can  you  consider 
any  physical  or  mental  suffering  or  pain,  which  may 
have  been  incurred  by  the  plaintiff',  or  his  family, 
by  the  deceased  cliild,  by  reason  of  the  injuries 
described  in  the  complaint.  You  are  simply  to  esti- 
mate the  value  of  the  child's  services  to  the  plaintiff 
from  the  time  of  her  death  until  she  would  have 


186        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

attained  her  majority,  less  the  cost  of  her  support 
and  maintenance,  including  clothing,  boarding, 
schooling  and  medical  attendance. ' '  It  was  held  by 
the  court  that  in  view  of  the  instructions  just  quoted, 
that  the  following  instruction  was  not  erroneous, 
for  the  reason  that  the  condition  of  the  family  should 
be  taken  into  account  in  determining  the  amount  of 
damages:  "In  estimating  the  plaintiff's  damages, 
the  jury  may  consider  all  his  family  at  the  time  of 
the  alleged  accident,  and  take  into  account  all  the 
services  that  this  child,  alleged  to  have  been  killed, 
might  reasonably  have  performed  in  his  family  until 
she  attained  her  majority,  and  such  services  may 
include  actual  labor  in  helping  to  carry  on  the  house- 
hold affairs,  and  the  pecuniary  value  of  all  the  acts 
of  kindness  and  attention  which  might  reasonably 
be  anticipated  that  she  would  have  performed  for 
the  plaintiff  and  his  family,  until  her  majority,  and 
would  administer  to  their  comfort  as  well  as  to  their 
necessities.  But  the  jury  should  not  consider  acts 
of  affection,  simply,  and  loss  of  companionship.  The 
recovery  is  limited  by  the  law  to  the  actual  pecuniary 
loss." 

In  Tilley  v.  Hudson  Kiver  Railroad  Co.,  24  N.  Y. 
471,  29  N.  Y.  252,  another  case  cited  with  approval 
in  the  Vreeland  case,  it  was  held  that  in  an  action 
by  a  father,  as  administrator  of  his  wife,  who  was 
killed  by  negligence,  leaving  children,  the  value  of 
her  earnings,  and  the  probability  that  the  children 
would  have  received  an  estate,  increased  by  such 
earnings  on  the  death  and  intestacy  of  their  father, 
cannot  be  considered  in  estimating  the  damages.  But 


BENEFICIARIES    AND   DAMAGES   FOR   DEATH  187 

the  court  placed  this  rule  on  the  ground  that  under 
the  common  law,  which  was  then  in  effect,  the  hus- 
band would  inherit  the  property  of  the  wife  and  that, 
therefore,  any  prospective  inheritance  to  the  chil- 
dren was  too  remote.  It  was  held,  however,  that 
injury  to  the  children  in  the  loss  of  maternal  nurture 
and  education  was  a  pecuniary  one  within  the  intent 
of  the  statute  and  a  proper  ground  of  damages. 
Defining  the  word  "pecuniary"  in  such  cases,  the 
court  said:  "The  injury  to  the  children  of  the  de- 
ceased by  the  death  of  the  mother  was  a  legitimate 
ground  of  damages;  and  we  do  not  agree  with  de- 
fendant's counsel  that  they  ought  to  have  been 
nominal.  The  difficulty  upon  this  point  arises  from 
the  employment  of  the  word  'pecuniary'  in  the 
statute;  but  it  was  not  used  in  a  sense  so  limited  as 
to  confine  it  to  the  immediate  loss  of  money  or 
property.  For  if  that  were  so,  there  is  scarcely  a 
case  where  any  amount  of  damages  could  be  re- 
covered. It  looks  to  prospective  advantages  of  a 
pecuniary  nature,  which  had  been  cut  off  by  the 
premature  death  of  the  person  from  which  they 
would  have  proceeded,  and  the  word  'pecuniary' 
was  used  in  distinction,  to  those  injuries  to  the 
affections  and  sentiments  which  arise  from  the  death 
of  relatives  and  which,  though  most  painful  and 
grievous  to  be  borne,  cannot  be  measured  or  reim- 
bursed by  money.  It  includes,  also,  those  losses 
which  result  from  the  deprivation  of  the  society 
and  companionship  of  relatives,  which  are  equally 
incapable  of  being  defined  by  any  recognized  meas- 
ure of  value.    But  even  children  sustain  a  loss  from 


188        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILBOADS 

the  death  of  a  parent,  and  especially  of  a  mother, 
of  a  different  kind.  She  owes  them  the  duty  of 
nurture  and  of  educational,  moral  and  physical 
training,  and  of  such  instructions  as  can  only  pro- 
ceed from  a  mother.  That  is,  to  say  the  least,  as 
essential  to  their  future  well-being  in  a  worldly 
point  of  view  and  to  their  success  in  life  as  the 
instruction  in  letters  and  other  branches  of  ele- 
mentary education  which  they  receive  at  hands  of 
other  teachers  who  are  employed  for  pecuniary  com- 
pensation. *  *  *  The  injury  in  these  cases  is  not 
pecuniary  in  the  very  strict  sense  of  the  word,  but 
it  belongs  to  that  class  of  wrongs,  as  distinguished 
from  injuries,  to  the  feelings  and  sentiments;  and 
in  my  view,  therefore,  it  falls  within  the  term  as  used 
in  the  statute.  *  *  *  The  children  have  been  de- 
prived of  that  which  they  were  entitled  to  receive 
by  the  wrongful  act  of  the  defendant. ' ' 

§  94.  Distribution  of  Amount  Recovered  Con- 
trolled by  Federal  Statute  and  Not  State  Laws. — 
In  the  distribution  of  any  money  received  by  an 
administrator  of  a  deceased  employe  of  a  common 
carrier  by  railroad  killed  within  the  terms  and  con- 
ditions of  the  federal  act,  the  state  statute  of  descent 
and  distribution  does  not  control,  but  the  money 
must  be  paid  to  the  beneficiaries  named  in  the  federal 
statute,  no  matter  whether  a  recovery  is  had  either 
under  §  1  of  the  federal  act  or  §  9.^^  In  the  Taylor 
case  an  administrator  of  the  estate  of  a  railroad 
employe  brought  suit  under  the  Federal  Employers ' 
Liability  Act  and  by  consent  of  a  court  having  juris- 

59.  Taylor  v.  Taylor,  232  U.  S.  363,  58  L.  Ed.  638. 


BENEFICIARIES    AND    DAMAGES   FOR   DEATH  189 

diction  over  the  estates  of  deceased  persons,  the 
administrator  compromised  with  the  railroad  com- 
pany and  accepted  a  judgment  of  $5,000.  Under  the 
law  of  the  state  one-half  of  this  amount  would  have 
gone  to  the  father  and  one-half  to  the  widow  of 
the  decedent.  The  appellate  division  of  the  Supreme 
Court  of  New  York  held  that  the  father  was  entitled 
to  half  of  the  money  and  the  decision  was  affirmed 
by  the  court  of  appeals.  But  when  the  case  reached 
the  Supreme  Court  of  the  United  States  on  writ  of 
error,  that  court  held  that  state  laws  were  entirely 
superseded  as  to  such  a  fund  and  that  the  widow 
was  entitled  to  the  whole  sum. 

§  95.  Damages  Due  Each  Beneficiary  Must  be 
Apportioned  in  the  Verdict. — In  all  actions  under 
the  Federal  Employers'  Liability  Act  where  there 
are  several  beneficiaries,  the  damages  due  each  of 
them  must  be  separately  stated  in  the  verdict,  the 
apportionment  being  for  the  jury  to  return.*^*' 

60.  Gulf,  C.  &  S.  F.  Ey.  Co.  v.  McGinnis,  228  U.  S.  173,  57  L.  Ed. 
785,  3  N.  C,  C.  A.  806,  4  N.  C.  C.  A.  926n,  Hardwick  v.  Wabash  K. 
Co.,  181  Mo.  App.  156;  Southern  Ey.  Co.  v.  Smith,  123  C.  C.  A. 
488,  205  Fed.  360;  Collins  v.  Pennsylvania  E.  Co.,  148  N.  Y.  Supp. 
777  J  Fogarty  v.  Northern  P.  Ey.  Co.,  —  Wash.  — ,  133  Pac.  609. 


CHAPTER  VI 

ASSUMPTION  OF  RISK  UNDER  FEDERAL  ACT 

§    96.  The   Statutory   Provision. 

§    97.  Assumption  of  Eisk  a  Defense  Under  the  Federal  Act. 

§    98.  Doctrine  Applied  as  Defined  in  Decisions  of  National  Courts, 

§    99.  Concrete  Instructions  Must  Be  Given,  if  Eequested. 

§  100.  "When  Assumption  of  Eisk  Is  Not  a  Defense — Federal  Safety 

Appliance   Act. 
§  101.  When  Assumption  of  Eisk  Is  No  Defense  When  There  Is  a 

Plurality  of  Causes. 
§  102.  Violations  of  Eules  Not  Assumption  of  Eisk. 
§  103.  Distinction    Between    Assumption    of    Eisk    and    Contributory 

Negligence. 
§  104.  Cases  in  Which  Interstate  Employes  Were  Held  Not  to  Have 

Assumed   the  Eisk. 
§  105.  Cases  in  Which  Interstate  Employes  Were  Held  to  Have  As- 
sumed the  Eisk. 
§  106.  Defense    of    Assumption    of    Eisk    Must    Be    Pleaded    to    Be 

Available. 
§  107.  Confusing  Assumption  of  Eisk  with  Contributory  Negligence 

in   Jury   Instructions   Under   Federal  Act. 
§  108.  Assumption  of  Eisk   Eliminated  in   Actions  for  Violation  of 

Hours  of  Service  Act. 

§  96.  The  Statutory  Provision. — Section  4  of  tlie 
federal  act  provides  "that  in  any  action  brought 
against  any  common  carrier  under  or  by  virtue  of 
any  of  the  provisions  of  this  act  to  recover  damages 
for  injuries  to,  or  the  death  of,  any  of  its  employes 
such  employe  shall  not  be  held  to  have  assumed  the 
risk  of  his  employment  in  any  case  where  the  viola- 
tion by  such  common  carrier  of  any  statute  enacted 
for  the  safety  of  employes  contributed  to  the  injury 
or  death  of  such  employe." 

190 


ASSUMPTION   OP   BISK  191 

§  97.  Assumption  of  Risk  a  Defense  Under  the 
Federal  Act. — After  the  passage  of  the  act  of  1908, 
several  courts  held  that  assumption  of  risk  was  not  a 
defense  to  an  action  under  the  federal  act.^  These 
courts  decided,  that,  if  the  plaintiff's  injuries  were 
due  to  any  act  of  negligence  enumerated  in  the  first 
section  of  the  act,  that  the  result  of  such  negligence 
could  not  be  assumed  by  the  employe  even  though 
he  knew  the  risks  and  dangers  arising  therefrom. 
The  decisions  of  these  courts  is  illustrated  by  an 
opinion  of  Judge  McCall  in  Wright  v.  Yazoo  &  M.  V. 
R.  Co.,  cited  in  the  notes,  in  which  he  said:  ''Shall 
the  courts  destroy  the  effect  of  the  act  in  this  particu- 
lar by  holding  that  common  carriers  are  not  liable 
to  their  servants  for  injury  or  death  inflicted  as  a 
result  of  the  negligence  of  their  officers,  agents  or 
employes,  upon  the  ground  that  the  servant  assumed 
the  risk  incident  to  the  negligence  of  the  officers, 
agents  or  employes  of  the  carrier.  *  *  *  As  I 
construe  the  act,  the  risk  that  the  employe  now 
assumes  is  the  ordinary  dangers  incident  to  his 
employment,  which  does  not  include,  since  the  pas- 
sage of  this  act,  the  assumption  of  the  risk  incident 
to  the  negligence  of  the  carrier's  officers,  agents  or 
employes,  or  any  defect  or  insufficiency  due  to  its 
negligence,    in   its   cars,    engines,    appliances,    ma- 

1.  WVight  V,  Yazoo  &  M.  V.  Ey.  Co.,  197  Fed.  94;  Philadelphia, 
&  W.  E.  Co.  V.  Tucker,  35  App.  Cas.  (D.  C.)  123,  1  N.  C.  C.  A.  841n; 
Southern  Ey.  Co.  v.  Howerton,  —  Ind.  — ,  101  N.  E.  121 ;  Sandidge  v. 
Atchison,  T.  &  S.  F.  E.  Co.  (C.  C.  A.),  193  Fed.  867;  Malloy  v. 
Northern  P.  E.  Co.,  151  Fed.  1019,  1  N.  C.  C.  A.  862n;  Bower  v. 
Chicago  &  N.  W.  E.  Co.,  —  Neb.  — ,  6  N.  C.  C.  A.  213n,  148  N.  W.  145. 


192        INJURIES  TO  INTEESTATE  EMPLOYES  ON  RAILEOADS 

cMnery,  track,  roadbed,  works,  boats,  wharves,  or 
other  equipment." 

But  these  decisions,  and  others  of  like  import, 
have,  no  doubt,  been  in  effect,  overruled  by  subse- 
quent decisions  of  the  Supreme  Court  of  the  United 
States.2  In  the  Horton  case  cited,  the  Supreme 
Court  held  that  except  as  to  violations  of  federal 
statutes  enacted  for  the  safety  of  employes,  the 
defense  of  assumption  of  risk  sliall  have  its  former 
effect  as  a  complete  bar  to  an  action  under  the 
statutes.  The  court  in  that  case  said:  ''It  seems 
to  us  that  §  4,  in  eliminating  the  defense  of  assump- 
tion of  risk  in  the  cases  indicated,  quite  plainly 
evidences  the  legislative  intent  that  in  all  other 
cases  such  assumption  shall  have  its  former  effect 
as  a  complete  bar  to  the  action."  An  instruction 
given  by  the  trial  court  in  that  case  pursuant  to  a 
statute  of  the  state  so  providing  that  a  railroad  em- 
ploye did  not  assume  any  defective  appliance  fur- 
nished by  the  employer,  was  held  erroneous  and  not 

2-  Seaboard  A.  L.  Ey.  Co.  v.  Horton,  233  U.  S.  492,  58  L.  Ed.  1062, 
6  N.  C.  C.  A.  75n,  95n,  101,  102n,  reversing  the  same  case  reported 
in  162  N.  C.  424;  accord,  Central  V.  E.  Co.  v.  Bethune,  124  C.  C.  A. 
528,  206  Fed.  868 ;  Guana  v.  Southern  P.  Ey.  Co.,  —  Ariz.  — ,  6  N.  C. 
C.  A.  96n,  139  Pac.  782;  Port  Worth  D.  C.  Ey.  Co.  v.  Copeland, 
—  Tex.  Civ.  App.  — ,  6  N.  C.  C.  A.  93n,  164  S.  W.  857;  Missouri 
K.  &  T.  Ey.  Co.  V.  Scott,  —  Tex.  Civ.  App.  — ,  160  S.  W.  432 ;  Oberlin 
V.  Oregon  W.  E.  &  N.  Co.,  —  Ore.  — ,  6  N.  C.  C.  A.  75n,  79n,  95n, 
188n,  142  Pae.  554;  Barker  v.  Kansas  City,  M.  &  O.  E.  Co.,  88  Kan. 
767,  43  L.  E.  A.  (N.  S.)  112;  TruesdeU  v.  Chesapeake  &  O.  Ey.  Co., 
159  Ky.  718;  Parley  v.  N.  Y.,  N.  H.  &  H.  E.  Co.,  87  Conn.  328,  6  N.  C. 
C.  A.  444n,  445n,  448n,  452n;  Chesapeake  &  O.  E.  Co.  v.  Walker's 
Adm'r,  159  Ky.  237;  Glenn  v.  Cincinnati,  N.  O.  &  T.  P.  Ey.  Co.,  157 
Ky.  453;  Helm  v.  Cincinnati,  N.  O.  &  T.  P.  Ey.  Co.,  156  Ky.  240, 
6  N.  C.  C.  A.  83n,  84n. 


ASSUMPTION  OF   RISK  193 

a  proper  application  of  the  rule  under  the  federal  act. 
The  court  held  that  under  the  common  law  doctrine 
of  assumption  of  risk,  the  employe  assumed  defects 
due  to  the  master's  negligence  when  those  defects 
and  risks  arising  therefrom  where  known  to  him  or 
were  open  and  obvious  or  plainly  observable. 

§  98.  Doctrine  Applied  as  Defined  in  Decisions  of 
National  Courts. — Decisions  of  state  courts  and  laws 
of  the  several  states  do  not  govern  in  determining 
the  application  of  the  doctrine  of  assumption  of  risk 
in  actions  under  the  federal  act.  On  the  contrary 
this  defense  is  to  be  applied  as  construed  and  de- 
fined by  the  decisions  of  the  national  courts.^ 

Under  the  rulings  of  the  United  States  Supreme 
Court  an  employe  of  a  railroad  engaged  in  interstate 
commerce,  whether  he  is  actually  aware  of  them  or 
not,  assumes  such  damages  and  risks  as  are  ordi- 
narily incident  to  his  employment  and  he  also 
assumes  the  risks  due  to  the  negligence  of  his 
employer  when  he  becomes  aware  of  the  defect  and 
of  the  risk  arising  from  it  or  when  such  defects  and 
risks  are  so  open  and  obvious  that  an  ordinarily 
prudent  person  would  have  observed  and  appre- 
ciated them  and  then  continues  in  the  service  with- 
out complaint.^ 

3.  Seaboard  A.  L.  Ey.  Co.  v.  Horton,  233  U.  S.  492,  58  L.  Ed.  1062, 
6  N.  C.  C.  A.  75n,  9on,  101,  102n;  Freeman  v.  Powell,  —  Tex.  Civ. 
App.  — ,  144  S.  W.  1033 ;  Glenn  v.  Cincinnati,  N.  O.  &  T.  P.  Ky,  Co., 
157  Ky.  453;  Seaboard  A.  L.  Ey.  Co.  v.  Moore,  228  U.  S.  433,  57 
L.  Ed.  907,  3  N.  C.  C.  A.  812;  contra,  Fish  v.  Chicago,  E.  I.  &  P.  Ey. 
Co.,  —  Mo.  — ,  172  S.  W.  340. 

4.  GUa  V.  G.  &  N.  E,  Co.  v.  Hall,  232  U.  S.  94,  58  L.  Ed.  521, 
1  N.  C.  C.  A.  362,  4  N.  C.  C.  A.  231n;  Texas  P.  E.  Co.  v.  Harvey, 
228  U.  S.  319,  57  L.  Ed.  852,  Choctaw,  0.  &  G.  E.  Co.  v.  McDade, 

Roberts  Liabilities— 1 3 


194        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

In    the    Horton    cases    cited    the    United    States 
Supreme  Court,  defining  assumption  of  risk  under 
the    federal    act,    said:    "Some    employments    are 
necessarily  fraught  with  danger  to  the  workman — 
danger  that  must  be  and  is  confronted  in  the  line 
of  his  duty.    Such  risks  as  are  normally  and  neces- 
sarily incident  to  the  occupation  are  presumably 
taken  into  the  account  in  fixing  the  rate  of  wages. 
And  a  workman  of  mature  years  is  taken  to  assume 
risks  of  this  sort,  whether  he  is  actually  aware  of 
them  or  not.    But  risks  of  another  sort,  not  naturally 
incident  to  the  occupation,  may  arise  out  of  the 
failure  of  the  employer  to  exercise  due  care  with 
respect  to  providing  a  safe  place  of  work  and  suitable 
and  safe  appliances  for  the  work.     These  the  em- 
ploye is  not  treated  as  assuming  until  he  becomes 
aware  of  the  defect  or  disrepair  and  of  the  risk 
arising  from  it,  unless  defect  and  risk  alike  are  so 
obvious  that  an  ordinarily  prudent  person  under  the 
circumstances  would  have  observed  and  appreciated 
them.    These  distinctions  have  been  recognized  and 
applied  in  numerous  decisions  of  this  court.    Choc- 
taw, Oklahoma  &  Gulf  R.  Co.  v.  McDade,  191  U.  S.  64, 
68  (48  L.  Ed.  96) ;  Schlemmer  v.  Buffalo,  Eochester 
&  Pittsburgh  By.  Co.,  220  U.  S.  590,  596  (4  N.  C.  C.  A. 
483n) ;  Tex.  &  Pac.  Ry.  Co.  v.  Harvey,  228  U.  S.  319, 
321  (57  L.  Ed.  852);  Gila  Valley  Ry.  Co.  v.  Hall, 
232  U.  S.  94,  102  (58  L.  Ed.  521,  1  N.  C.  C.  A.  362, 
4  N.  C.  C.  A.  231n),  and  cases  cited.     When  the 

191  U.  S,  64,  48  L.  Ed.  96;  Schlemmer  v.  Buffalo  K.  &  P.  R.  Co., 
220  U.  S.  590,  55  L.  Ed.  596,  4  N.  C.  C.  A.  483ii,  aff'g  220  Pa.  470; 
Emanuel  v.  Georgia  &  F.  Ry.  Co.,  —  Ga.  — ,  83  S,  E.  230. 


ASSUMPTION   OF   RISK  195 

employe  does  know  of  the  defect,  and  appreciates  the 
risk  that  is  attributable  to  it,  then  if  he  continues 
in  the  employment,  without  objection,  or  without 
obtaining  from  the  employer  or  his  representative 
as  assurance  that  the  defect  will  be  remedied,  the 
employe  assumes  the  risk,  even  though  it  arise  out 
of  the  master's  breach  of  duty.  If,  however,  there  be 
a  promise  of  reparation,  then  during  such  time  as 
may  be  reasonably  required  for  its  performance  or 
until  the  particular  time  specified  for  its  perform- 
ance, the  employe  relying  upon  the  promise  does  not 
assume  the  risk  unless  at  least  the  danger  be  so  im- 
minent that  no  ordinarily  prudent  man  under  the 
circumstances  would  rely  upon  such  promise.  Hough 
V.  Railway  Co.,  100  U.  S.  213,  224  (25  L.  Ed.  612); 
Southwestern  Brewery  v.  Schmidt,  226  U.  S.  162, 
168  (57  L.  Ed.  170).  This  branch  of  the  law  of 
master  and  servant  seems  to  be  traceable  to  Holmes 
V.  Clarke,  6  Hurl.  &  Norm.  348;  Clarke  v.  Hohnes, 
7  Hurl.  &  Norm.  937. ' '  In  another  recent  case  before 
the  Supreme  Court,  the  plaintiff  had  been  injured 
while  riding  a  three-wheeled  gasoline  car  on  the 
railroad  track  of  defendant.  The  car  was  derailed 
due  to  a  defective  condition  of  the  flange  of  one  of 
the  wheels.  The  plaintiff  did  not  know  of  the  defect 
and  had  not  been  working  with  the  car  but  two  or 
three  days.  The  lower  court  gave  this  instruction 
on  assumption  of  risk  to  the  jury:  "The  true  test  ' 
is  not  in  the  exercise  of  ordinary  care,  to  discover 
dangers,  by  the  employe,  but  whether  the  defect  is 
known  or  plainly  observable  by  him.  An  employe 
is  not  charged  by  law  with  the  assumption  of  a  risk 


196        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

arising  ont  of  a  defective  appliance  provided  by  Ms 
employer,  unless  his  employment  was  of  such  a 
nature  as  to  bring  to  his  attention  and  cause  him  to 
realize  and  comprehend  the  dangers  incident  to  the 
use  of  such  appliances."  Concerning  this  instruc- 
tion the  Supreme  Court  said:  "This,  we  think,  was 
a  correct  instruction  under  the  circumstances  of  the 
case.  An  employe  assumes  the  risk  of  dangers  nor- 
mally incident  to  the  occupation  in  which  he  volun- 
tarily engages,  so  far  as  these  are  not  attributable 
to  the  employer's  negligence.  But  the  employe  has 
a  right  to  assume  that  his  employer  has  exercised 
proper  care  with  respect  to  providing  a  safe  place 
of  work,  and  suitable  and  safe  appliances  for  the 
work,  and  is  not  to  be  treated  as  assuming  the  risk 
arising  from  a  defect  that  is  attributable  to  the 
employer's  negligence,  until  the  employe  becomes 
aware  of  such  defect,  or  unless  it  is  so  plainly 
observable  that  he  may  be  presumed  to  have  known 
of  it.  Moreover,  in  order  to  charge  an  employe  with 
the  assumption  of  risk  attributable  to  a  defect  due 
to  the  employer's  negligence,  it  must  appear  not  only 
that  he  knew  (or  is  presumed  to  have  known)  of  the 
defect,  but  that  he  knew  it  endangered  his  safety; 
or  else  such  danger  must  have  been  so  obvious  that 
an  ordinarily  prudent  person  under  the  circum- 
stances would  have  appreciated  it.  Union  Pacific 
Railway  Co.  v.  O'Brien,  161  U.  S.  451,  457  (40  L.  Ed. 
766) ;  Texas  &  Pacific  Railway  v.  Archibald,  170  U.  S. 
665,  671  (42  L.  Ed.  1189);  Choctaw,  Oklahoma  &  C. 
R.  R.  Co.  V.  Swearingen,  196  U.  S.  51,  62  (49  L.  Ed. 


ASSUMPTION   OF   RISK  197 

382);  Bums  v.  Delaware  &  Atlantic  Telegraph  Co., 
70  N.  J.  Law,  745,  752  (67  L.  E.  A.  956)."  ^ 

§  99.  Concrete  Instruction  Must  be  Given,  if  Re- 
quested.— In  instructing  the  jury  on  the  question  of 
assumption  of  risk  a  concrete  instruction  applicable 
to  the  phase  of  the  evidence  should  be  given;  and 
the  court  should  not  couch  the  instruction  in  such 
general  and  sweeping  language  that  it  is  not  cal- 
culated to  give  the  jury  an  accurate  understanding 
of  the  law  upon  the  subject.*^  In  an  action  under 
the  federal  act,  the  plaintiff,  an  engineer,  was  in- 
jured by  the  explosion  of  a  water  glass  on  which  the 
gauge  was  missing.  The  United  States  Supreme 
Court  held  that  the  state  trial  court  committed  re- 
versible error  in  refusing  to  give  the  following 
instruction :  "  If  you  find  by  a  preponderance  of  evi- 
dence that  the  water  glass  on  the  engine  on  which 
plaintiff  was  employed  was  not  provided  with  a 
guard  glass,  and  the  condition  of  the  glass  was  open 
and  obvious  and  was  fully  known  to  the  plaintiff, 
and  he  continued  to  use  such  water  glass  with  such 
knowledge  and  that  he  knew  the  risk  incident 
thereto,  then  the  court  charges  you  that  the  plain- 
tiff voluntarily  assumed  the  risk  incident  to  such 
use."'^ 

§  100.  When  Assumption  of  Risk  Is  Not  a  Defense 
— Federal  Safety  Appliance  Act. — In  any  action  for 
injuries  based  upon  a  violation  by  a  railroad  com- 

5.  GUa  V,  G.  &  N.  R.  Co.  v.  Hall,  232  U.  S.  94,  58  L.  Ed.  521, 
1  N.  C.  C.  A.  362,  4  N.  C.  C.  A.  231n. 

6.  Norfolk  &  W,  Ey.  Co.  v.  Earnest,  229  U.  S.  114,  57  L.  Ed.  1096, 
3  N.  C.  C.  A.  806,  Ann.  Cas.  1914  C  172n. 

7.  Seaboard  A.  L.  By.  Co.  v.  Horton,  233  U.  S.  492,  58  L.  Ed.  1062, 
6  N.  C.  C.  A.  75n,  95n,  101,  102n. 


198        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

pany  of  any  federal  statute  enacted  for  the  safety 
of  employes,  such  as  the  Federal  Safety  Appliance 
Act,  if  it  is  shown  that  the  injury  is  due  to  a  viola- 
tion of  such  federal  statutory  laws,  the  doctrine  of 
assumption  of  risk  is  absolutely  wiped  out  and  is  no 
defense  whatever  to  an  action  under  the  federal  act. 
The  language  of  §  4  of  the  act  makes  this  proposi- 
tion clear  and  it  has  been  so  construed  by  the  courts 
without  dissent.®  Passing  upon  a  requested  instruc- 
tion in  an  action  for  violation  of  the  Safety  Appliance 
Act  which  charged  that  if  the  plaintiff  knew  the 
defect  and  the  risk  arising  therefrom,  he  could  not 
recover,  the  Supreme  Court  of  the  United  States  in 
the  Crockett  case  said:  "Upon  the  merits,  we  of 
course  sustained  the  contention  that  by  the  Em- 
jDloyers'  Liability  Act  the  defense  of  assumption  of 
risk  remains  as  at  common  law,  saving  in  the  cases 
mentioned  in  §  4,  that  is  to  say:  'Any  case  where  the 
violation  by  such  common  carrier  of  any  statute 
enacted  for  the  safety  of  employes  contributed  to 
the  injuiy  or  death  of  such  employe.'  "  A  few 
courts  had  held  that  the  clause  '  *  any  statute  enacted 
for  the  safety  of  employes,"  included  state  statutes 
as  well  as  federal.  The  result  of  this  ruling  would 
have  been  that  assumption  of  risk  under  the  national 
law  would  have  been  an  absolute  defense  to  the  same 
acts  in  some  states  and  not  in  others,  thus  destroying 
^the  uniformity  of  the  applicability  of  the  federal 
law  throughout  the  nation.  Such  a  contention  was 
condemned   by  the  Supreme   Court  of  the  United 

8.  Southern  Ey.  Co.  v.  Crockett,  234  U.  S.  725,  58  L.  Ed.  1564, 
6  N.  C.  C.  A.  94n. 


ASSUMPTION   OF   RISK  199 

States  in  the  following  language:  "By  the  phrase 
'any  statute  enacted  for  the  safety  of  employes,' 
Congress  evidently  intended  federal  statutes,  such 
as  the  Safety  Appliance  Acts  (March  2,  1893,  c.  196, 
27  Stat.  531,  6  Fed.  Stat.  Ann.  pp.  752-756;  March 
2,  1903,  c.  976,  32  Stat.  943,  10  Fed.  Stat.  Ann.  p. 
375;  April  14,  1910,  c.  160,  36  Stat.  298,  Fed.  Stat. 
Ann.  1912  Supp.  p.  335;  February  17,  1911,  c.  103, 
36  Stat.  913,  Fed.  Stat.  Ann.  1912  Supp.  p.  339); 
and  the  Hours  of  Service  Act  (March  4,  1907,  c. 
2939,  34  Stat.  1415,  Fed.  Stat.  Ann.  1909  Supp.  p. 
581).  For  it  is  not  to  be  conceived  that,  in  enacting 
a  general  law  for  establishing  and  enforcing  the 
responsibility  of  common  carriers  by  railroad  to  their 
employes  in  interstate  commerce.  Congress  intended 
to  permit  the  legislatures  of  the  several  states  to 
determine  the  effect  of  contributory  negligence  and 
assumption  of  risk,  by  enacting  statutes  for  the 
safety  of  employes,  since  this  would  in  effect  relegate 
to  state  control  two  of  the  essential  factors  that 
determine  the  responsibility  of  the  employer. ' ' 

§  101.  When  Assumption  of  Risk  Is  No  Defense 
When  There  Is  a  Plurality  of  Causes. — Where  the 
injury  to  an  employe  is  due  to  two  acts  contributing 
as  proximate  causes,  notwithstanding  the  fact  that 
the  employe  assumes  the  risk  from  one  of  these 
causes,  assumption  of  risk  is  no  defense  to  the  action 
if  the  other  proximate  cause  is  one  for  which  the 
master  is  liable  and  is  not  an  ordinary  risk  of  the 
employment  or  one  of  which  the  employe  has  no 
constructive  or  actual  knowledge.^ 

9.  Northern  P.  R.  Co.  v.  Maerkl,  117  C.  C.  A.  237,  198  Fed.  1. 


200        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

§  102.  Violations  of  Rules  Not  Assumption  of  Risk. 
— In  an  action  under  the  federal  act,  the  defendant 
pleaded  in  its  answer  that  the  plaintiff  had  contri- 
buted to  his  own  injury  by  violating  one  of  its  rules 
governing  employes  and  that  he  therefore  assumed 
the  risk.  The  court  held  that  such  a  fact,  even  if 
proven,  did  not  show  assumption  of  risk  for  the 
reason  that  such  a  defense  is  referable  to  contribu- 
tory negligence  and  not  to  assumption  of  risk.^° 
^  §  103.  Distinction  Between  Assumption  of  Risk 
and  Contributory  Negligence. — The  distinction  be- 
tween assumption  of  risk  and  contributory  negli- 
gence under  the  federal  act  is  important  for  the 
reason  that,  except  as  to  violations  of  federal  statutes 
for  the  protection  of  employes,  assumption  of  risk 
is  an  absolute  defense  and  contributory  negligence 
only  reduces  the  damages.  As  construed  by  the 
United  States  Supreme  Court  an  employe  assumes 
the  ordinary  risks  and  hazards  of  his  occupation 
and  also  those  defects  and  risks  which  are  known  to 
him,  or  are  plainly  obser^^able,  although  due  to  the 
master's  negligence.  Contributory  negligence,  on 
the  other  hand,  is  the  omission  of  the  employe  to  use 
those  precautions  for  his  own  safety  which  ordinary 
prudence  requires.  ^^ 

In  an  action  under  the  Federal  Employers'  Lia- 
bility Act,  the  Supreme  Court  of  the  United  States 
described  the  distinction  in  the  following  language: 

10,  Obeilin  v.  Oregon  W.  R.  &  N.  Co.,  —  Ore.  — ,  6  N.  C.  C.  A. 
75n,  79n,  95n,  188n,  142  Pac.  554;  Carter  v.  Kansas  City  S.  Ry.  Co., 
—  Tex.  Civ.  App.  — ,  4  N.  C.  C.  A.  634n,  155  S.  W.  638. 

11.  Schlemmer  v.  Buffalo,  R.  &  P.  R.  Co.,  220  U.  S.  590,  55  L.  Ed. 
596,  4  N.  C.  C.  A.  483n,  aff'g  222  Pa.  470. 


ASSUMPTION   OF   RISK  201 

''And,  taking  §§3  and  4  together,  there  is  no  doubt 
that  Congress  recognized  the  distinction  between 
contributory  negligence  and  assumption  of  risk;  for, 
while  it  is  declared  that  neither  of  these  shall  avail 
the  carrier  in  cases  where  the  violation  of  a  statute 
has  contributed  to  the  injury  or  death  of  the  em- 
ploye, there  is,  with  respect  to  cases  not  in  this 
category,  a  limitation  upon  the  effect  that  is  to  be 
given  to  contributory  negligence,  while  no  corre- 
sponding limitation  is  imposed  upon  the  defense  of 
assumption  of  risk — perhaps  none  was  deemed 
feasible.  The  distinction,  although  simple,  is  some- 
times overlooked.  Contributory  negligence  involves 
the  notion  of  some  fault  or  breach  of  duty  on 
the  part  of  the  employe,  and  since  it  is  ordinarily  his 
duty  to  take  some  precaution  for  his  own  safety  when 
engaged  in  a  hazardous  occupation,  contributory 
negligence  is  sometimes  defined  as  a  failure  to  use 
such  care  for  his  safety  as  ordinarily  prudent  em- 
ployes in  similar  circumstances  would  use.  On  the 
other  hand,  the  assumption  of  risk,  even  though  the 
risk  be  obvious,  may  be  free  from  any  suggestion  of 
fault  or  negligence  on  the  part  of  the  employe."  ^^ 

§  104.  Cases  in  Which  Interstate  Employes  Were 
Held  Not  to  Have  Assumed  the  Risk.— Railroad  em- 
ployes engaged  in  interstate  commerce  were  held  in 
actions  under  federal  act  not  to  have  assumed  the 
risk  under  the  following  facts.  Decedent  while  en- 
gaged in  cleaning  snow  from  the  tracks  of  a  railway 

12.  Seaboard  A.  L.  Ry.  Co.  v.  Horton,  233  U.  S.  492,  58  L.  Ed. 
1082,  6  N.  C.  C.  A.  75n,  95n,  101,  102n. 


202        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RiVILROADS 

company  when  there  was  mist,  smoke  and  some  snow, 
was  killed  by  a  train  bound  from  New  York  to  Phila- 
delphia. At  the  place  of  the  accident  there  were  four 
main  lines  of  trackage.  Shortly  after  9 :00  o  'clock  in 
the  morning  the  men  working  with  plaintiff  were 
warned  to  step  off  track  No.  4  by  the  call  of  the  fore- 
man in  order  to  let  a  local  train  by.  The  decedent 
and  two  others  were  working  on  track  2.  There  was 
no  call  to  them,  the  practice  of  the  foreman  being  to 
designate  the  track  in  his  warning,  the  men  on  the 
other  track  continuing  to  work.  The  New  York  train 
struck  the  decedent  while  he  was  working  on  track 
No.  2  and  it  approached  without  any  signal  or  warn- 
ing. The  local  train  was  slow  and  the  New  York 
train  came  fast  and  while  the  men  were  attracted 
by  the  first,  the  other  rushed  upon  them.  The  defend- 
ant produced  testimony  in  conflict  with  these  facts 
shown  by  the  plaintiff.  Speaking  of  the  legal  effect 
of  this  evidence  on  the  question  of  assumption  of 
risk  Mr.  Justice  McKenna,  for  the  court,  said:  '*It 
is  hence  contended  by  the  railway  company  that 
McGovem  assumed  the  risk  of  the  situation,  and 
that,  therefore,  it  was  error  for  the  district  court  to 
refuse  to  give  an  instruction  which  presented  that 
contention.  We  have  given  the  testimony  in  general 
outline,  but  enough  to  show  that  what  conflict  there 
was  in  it  was  for  the  jury  to  judge  and  what  deduc- 
tions there  were  to  be  made  from  it  were  for  the  jury 
to  make.  And  the  district  court,  being  of  this  view, 
refused  to  charge  the  jury,  as  we  have  seen,  that 
McGovem  had  assumed  the  risk  of  the  situation. 


ASSUMPTION   OF   RISK  203 

We  cannot  say  that,  as  a  matter  of  law,  the  court 
was  mistaken."  ^^ 

In  another  case  the  Supreme  Court  again  held 
that  a  deceased  employe  did  not  assume  the  risk 
under  the  circumstances  hereinafter  detailed.^^  The 
decedent  was  an  engineer  on  a  freight  train  proceed- 
ing southward  on  a  lead  track  in  a  railroad  yard. 
Aliead  of  him  there  were  some  cars  on  a  yard  track. 
While  visible  to  the  engineer  from  the  right  side 
they  became  more  and  more  invisible  as  the  train  ad- 
vanced. The  engineer  asked  the  fireman  who  was  on 
the  left  side  of  the  engine  and  in  full  view  of  the 
cars,  whether  they  were  clear  of  the  lead  track  and 
was  answered  that  they  were.  There  was  a  dispute 
as  to  whether  a  head  brakeman  was  riding  in  the 
cab  and  whether  he  called  the  engineer's  attention 
to  the  fact  that  the  coal  cars  were  not  in  the  clear. 
But  there  was  no  dispute  that  the  engineer  again 
asked  the  fireman  who  answered  that  the  cars  were 
not  clear  and  jumped  from  the  locomotive.     The 

13.  McGovern  v.  Philadelphia  &  E.  E.  Co.,  235  U.  S.  389,  —  L. 
Ed.  — . 

14.  Yazoo  &  M.  V.  R.  Co.  v.  Wright,  235  U.  S.  376,  —  L,  Ed.  — , 
aff 'g  same  case  reported  in  125  C.  C.  A.  25,  207  Fed.  281,  197  Fed.  94. 
In  this  case  the  Supreme  Court  ignored  the  rule  as  to  assumption 
of  risk  announced  by  Judge  MeCall,  the  trial  judge,  to  the  effect 
that  the  employe  does  not  in  any  case  assume  the  risk  due  to  the 
master's  negligence  (see  §  97,  supra)  ;  but  the  court  held  that,  on  the 
facts,  it  would  not  declare  as  a  matter  of  law  that  the  engineer  knew 
of  the  danger  or  must  be  presumed  to  have  known  of  it.  The  cases 
holding  that  an  employe  assumes  the  risk  due  to  the  master's  negli- 
gence when  the  defect  and  danger  arising  from  it,  is  known  or  is 
plainly  observable,  and  then  continues  in  the  employment  without  com- 
plaint, were  cited  by  the  court  with  approval.  See  §  98,  supra;  Gila 
V.  G.  &  N.  E.  Co.  V.  HaU,  232  U.  S.  94,  58  L.  Ed.  521,  1  N.  C.  C.  A. 
362,  4  N.  C.  C.  A.  231n, 


204        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

engineer  shut  off  his  power  and  stepped  to  the  left 
side,  where,  from  the  collision  which  immediately 
resulted,  he  was  injured  and  died.  Concerning  these 
facts  the  court  in  denying  that  as  a  matter  of  law 
the  decedent  had  assumed  the  risk,  said:  "Whatever 
may  be  the  difficulty  of  distinguishing  in  many  cases 
between  the  application  of  the  doctrine  of  assump- 
tion of  risk  and  the  principles  of  contributory  negli- 
gence, tliat  there  is  no  such  difficulty  here  is  ap- 
parent, since  the  facts  as  stated  above  absolutely 
preclude  all  inference  that  the  engineer  knew  or, 
from  the  facts  shown,  must  be  presumed  to  have 
known  that  the  coal  cars  were  protruding  over  the 
track  on  which  he  was  moving  and  deliberately 
elected  to  assume  the  risk  of  collision  and  great 
danger  which  would  be  the  inevitable  result  of  his 
continuing  the  forward  movement  of  his  train. ' '  The 
court  in  this  case  cited  with  approval  several  of  its 
former  opinions  in  which  the  assumption  of  risk  was 
discussed  and  these  cases  are  given  in  the  notes.^^ 
A  switchman  was  jarred  from  the  narrow  rim  of  the 
pilot  of  a  ''road"  engine  while  it  was  being  used  at 
night  in  the  yards  as  a  switch  engine.  The  court 
held  that  whether  he  assumed  the  risk  was  a  ques- 
ts. Union  P.  E.  Co.  v.  O'Brien,  161  U.  S.  451,  40  L.  Ed.  766; 
Texas  &  P.  E.  Co.  v.  Archibald,  170  U.  S.  665,  42  L.  Ed.  1188,  4  Am. 
Neg.  Eep.  746;  Texas  &  P.  E.  Co.  v.  Behymer,  189  U.  S.  468,  47  L. 
Ed.  905,  13  Am.  Neg.  Rep.  695 ;  Choctaw,  O.  &  G.  E.  Co.  v.  McDade, 
191  U.  S.  64,  48  L.  Ed.  96,  15  Am.  Neg.  Eep.  230;  Schlemmer  v. 
Buffalo,  E.  &  P.  E.  Co.,  205  U.  S.  1,  12,  51  L.  Ed.  681,  686,  1  N.  C. 
C.  A.  859n,  4  N.  C.  C.  A.  483n,  rev'g  207  Pa.  198;  s.  c,  220  U.  S. 
590,  55  L.  Ed.  596,  4  N.  C.  C.  A.  483n,  aff'g  222  Pa.  470;  Seaboard 
Air  Line  E.  Co.  v.  Horton,  233  U.  S.  492,  503,  504,  58  L.  Ed.  1062, 
1069,  1070,  6  N.  C.  C.  A.  75n,  101,  102n. 


ASSUMPTION   OP   RISK  205 

tion  for  the  jury.^*'  A  brakeman  in  the  nighttime  was 
ordered  by  the  yard  master  to  couple  up  an  air  hose 
between  two  cars  and  it  was  necessary  to  do  this  by 
hand.  The  brakeman  was  required  to  step  within 
the  tracks  and  attach  the  two  ends  of  the  air  hose 
together.  While  so  at  work  he  was  struck  by  the 
car  to  which  he  had  been  ordered  to  couple  and  this 
was  caused  by  other  cars  being  negligently ' '  kicked ' ' 
against  it  by  other  employes.  The  court  held  that 
the  plaintiff  did  not  assume  the  risk.^'^  A  freight 
conductor  did  not  assume  the  risk  of  the  negligence 
of  a  flagman  working  under  him  who  failed  to  pro- 
tect the  rear  of  the  train.  ^^  A  railway  employe  who 
had  been  working  only  three  or  four  days  on  a  three-  s 
wheeled  gasoline  car  did  not  assume  the  risk  from  a  \ 
defective  flange  on  the  wheel  of  the  car  of  which  he 
was  ignorant  and  it  did  not  appear  to  be  a  part  of  ( 
his  duty  to  inspect  the  wheel  or  to  look  after  its/ 
condition.^^  An  employe  of  a  railroad  company  who 
was  injured  in  a  collision  did  not  assume  the  risk  of 
an  injury  from  the  negligence  of  a  railroad  company 
in  permitting  the  engine  to  be  used  in  pulling  a  train 
which  leaked  steam  so  that  the  engineer  could  not 
see  a  train  ahead  of  him.^*^  A  track  laborer  repairing 
a  switch  at  night  in  the  terminal  yards  of  a  railroad 
company  did  not  assume  the  risk  of  injury  due  to 

16.  Louisville  &  N.  R.  Co.  v.  Lankford,  126  C.  C.  A.  247,  209  Fed. 
321,  6  N.  C.  C.  A.  86n,  106n. 

17.  Chesapeake  &  O.  R.  Co.  v.  Proffit  (C.  C.  A.),  218  Fed.  23. 

18.  Pennsylvania  Ry.  Co.  v.  Goughnor,  126  C.  C.  A.  39,  208  Fed. 
961. 

19.  Gila  V.  G.  &  N.  R.  Co.  v.  Hall,  232  U.  S.  94,  58  L.  Ed.  521, 
1  N.  C.  C.  A.  362,  4  N.  C.  C.  A.  231n. 

20.  Niles  V.  Cent.  V.  Ry.  Co.,  87  Vt.  356,  6  N.  C.  C.  A.  75n. 


206        INJURIES  TO  INTERSTATE  EMPLOYES  ON  R^ULROADS 

tlie  negligence  of  the  company  in  causing  cars  to  be 
upon  the  track  on  which  he  worked  under  their  own 
momentum  and  without  any  warning  or  signal.^^ 
An  employe  injured  by  striking  an  unlighted  switch 
stand  too  close  to  the  track  did  not  assume  the  risk 
of  injury  therefrom. ^^  A  section  man  who  was  hurt 
while  assisting  an  employe  in  taking  a  motor  car  off 
of  a  railroad  track  in  order  to  allow  a  train  to  pass 
did  not  assume  the  risk  of  injury  on  account  of  an  in- 
sufficient number  of  men  to  assist  him  as  he  had  no 
time  to  deliberate  and  determine  whether  the  car 
could  be  taken  off  the  track  by  two  men  with  safety.^^ 
A  brakeman  injured  because  of  a  defective  fastening 
in  a  car  door,  did  not  assume  the  risk  of  injury  there- 
from, it  was  held,  for  the  reason  that  there  was  no 
evidence  that  he  knew  of  the  defect  or  could  have 
known  of  it  by  exercising  ordinary  care.^'* 

§  105.  Cases  in  Which  Interstate  Employes  Were 
Held  to  Have  Assumed  the  Risk. — Employes  engaged 
in  interstate  commerce  were  held  by  the  courts  to 
have  no  remedy  under  the  federal  act  because  of 
assumption  of  risk,  under  the  following  circum- 
stances: An  engineer  while  his  train  was  moving, 
climbed  on  top  of  the  coal  in  the  tender  to  ascertain 
the  amount  of  water  in  the  tank  by  looking  through 
a  man  hole  at  the  rear  end  of  the  tender,  and  while 

21.  Colasurdo  v.  Central  E.  Co.  of  New  Jersey,  180  Fed.  832;  s.  c, 
113  C.  C.  A.  379,  192  Fed.  901. 

22.  Vickery  v.  New  London  N.  Ey.  Co.,  87  Conn.  634,  4  N.  C.  C.  A. 
218n,  6  N.  C.  C.  A.  76n,  93n,  230n. 

23.  Missouri,  K,  &  T.  Ey.  Co.  v.  Freeman,  —  Tex.  — ,  5  N,  C.  C.  A. 
583n,  584n,  168  S.  W.  69. 

24.  Caiter  v.  Kansas  City  S.  Ey.  Co.,  —  Tex.  Civ.  App.  — ,  4  N.  C. 
C.  A.  634n,  155  S.  W.  638. 


ASSUMPTION   OF   RISK  207 

returning,  came  in  contact  with  an  electric  wire 
attached  to  an  overhead  hridge.  He  was  instantly 
killed  by  the  electric  current.  This  wire  was  sus- 
pended over  the  center  line  of  the  tracks  upon  which 
the  train  was  traveling  and  was  used  for  the  opera- 
tion of  trains  by  electricity.  Passenger  trains  had 
been  operated  on  this  road  for  several  years  by  elec- 
tricity. The  method  for  electrical  operation  was  that 
known  as  the  overhead  system.  The  equipment 
required  for  this  method  consisted  in  part  of  steel 
structures  by  the  side  of  and  across  the  tracks  for 
the  support  of  wires  running  along  the  center  lines 
of  the  rails.  These  wires  were  suspended  at  standard 
height,  which  was  221/2  feet  above  the  level  of  the 
top  of  the  rails,  but  where  there  were  overhead 
bridges  it  was  necessary  to  depress  them  at  those 
places.  The  court  held,  in  an  action  under  the  fed- 
eral act,  for  the  death  of  the  engineer,  that  the  de- 
cedent assumed  the  risk  and  that  there  could  be  no 
recovery. 2^  In  so  holding  that  the  decedent  had  as- 
sumed the  risk,  the  court  said:  "As  bearing  upon 
the  question  of  the  intestate's  assumption  of  the  risk 
which  caused  his  death,  the  pertinent  facts  lie  out- 
side of  the  realm  of  dispute  or  uncertainty.  They 
show  that  Bottomley  had  full  knowledge  of  all  the 
physical  factors  in  the  situation.  As  an  engineer, 
he  was  familiar  with  engines  and  tenders  and  their 
proportions.  The  engine  he  was  driving  was  one  of 
moderate  size,  and  of  a  type  long  in  use.  Its  tender, 
whether  of  the  large  or  smaller  size,  was  one  in  use 

25.  Farley  v.  New  York,  N.  H.  &  H.  E.  Co.,  87  Conn.  328,  6  N.  C. 
C.  A.  444n,  445n,  448n,  4o2n. 


208        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

with  tliis  type  of  engine.  It  was  neither  special  nor 
unusual.  In  his  years  of  experience,  for  the  most 
part  confined  to  this  section  of  the  road,  and  his 
recent  months  of  frequent  service  upon  it,  as  engi- 
neer, he  must  have  become  acquainted  with  the  ex- 
istence of  the  many  overhead  bridges  which  here 
span  the  tracks,  with  the  narrow  space  between 
bridges  and  tops  of  engine  and  tender,  and  with  the 
manner  in  which  the  electric  service  wires  were 
strung  in  carrying  them  under  the  bridges.  These 
conditions  were  apparent  to  casual  observation;  they 
had  remained  unchanged  for  years;  and  they  were 
closely  related  to  the  performance  of  his  duties.  He 
must  also  have  known  that  these  wires  were  elec- 
trically charged  for  the  operation  of  trains.  As  a 
locomotive  engineer  of  experience  living  in  this  age 
of  the  world,  he,  untold  and  unwarned,  must  have 
been  sufficiently  intelligent  and  informed  to  know  of 
the  latent  danger  which  lurked  in  the  wires  so 
charged  to  one  who  should  come  into  contact  with 
them  or  into  their  immediate  vicinity,  and  of  the 
extremity  of  that  danger.  But  that  matter  aside, 
the  knowledge  of  the  danger  had  been  so  directly 
and  forcibly  brought  home  to  him  through  the  no- 
tices and  warnings,  given  to  him  by  the  defendant 
that  he  could  not  have  failed  both  to  know  the  danger 
to  his  life  that  there  would  be  in  permitting  himself 
to  come  into  contact  with  or  near  to  one  of  the  wires, 
and  to  comprehend  the  character  and  extent  of  that 
danger.  This  being  so,  he  certainly  knew  and  com- 
prehended the  risk  incident  to  his  employment.  No 
one  could  be  expected  to  have  better  knowledge  or 


ASSUMPTION   OF  RISK  209 

a  more  adequate  appreciation.  Possessed  of  this 
knowledge  and  appreciation,  lie  had  for  years  chosen 
to  continue  in  his  employment.  By  so  doing  he  as- 
sumed its  risk,  which,  during  these  years,  had  re- 
mained unchanged,  and  been  unenhanced  by  any 
new  act  of  the  defendant  which  could  by  possibility 
be  imputed  to  it  as  negligence." 

A  railroad  special  agent  stepped  in  between  two 
cars  of  a  train  in  a  terminal  yard  without  the  knowl- 
edge of  the  trainmen  in  charge  of  the  train.  The 
court  held  that  he  assumed  the  risk  of  an  injury 
from  the  movement  of  the  train.^*^  An  engineer  who 
knew  that  the  gauge  of  the  water  glass  on  his  engine 
was  missing  and  with  such  knowledge  continued  to 
work  without  complaint  was  held  to  have  assumed 
the  risk.^^  A  section  laborer  was  engaged  in  remov- 
ing 60  pound  rails  and  substituting  100  pound  raUs 
on  a  switch  track.  The  heavy  rails  had  been  depos- 
ited near  the  tracks  a  few  days  before  the  injuiy. 
One  of  these  rails  was  carried  to  the  track  and  laid 
down.  The  second  rail  was  then  carried  to  the 
tracks.  A  foreman  was  in  charge  of  the  work  and 
the  plaintiff  was  a  member  of  the  crew.  When  the 
crew  reached  the  track  some  one  of  the  crew  gave 
the  signal  to  throw  the  rail.  When  the  rail  was 
thrown,  it  rebounded  and  struck  and  injured  plain- 
tiff. There  was  some  evidence  to  the  effect  that  the 
rail  brace  which  was  used  for  the  purpose  of  keeping 

26.  Helm  v.  Cinciimati,  N.  O.  &  T.  P.  Ey,  Co.,  156  Ky.  240,  6  N.  C. 
C.  A.  83n,  84n. 

27.  Seaboard  A.  L.  Ey.  Co.  v.  Horton,  233  U.  S.  492,  58  L.  Ed. 
1062,  6  N.  C.  C.  A.  75n,  95n,  101,  102n. 

Roberts  Liabilities — 14 


210        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

the  60  pound  rails  in  position  was  not  moved  when 
the  60  pound  rail  was  taken  up  and  that  the  heavier 
rail,  when  thrown,  struck  the  rail  brace  and  this 
caused  the  rail  to  rebound.  There  was  also  evidence 
that  the  safer  way  to  handle  the  rails  was  by  use 
of  rail  tongs  but  it  did  not  appear  that  such  tongs 
were  being  used  during  the  time  of  plaintiff's  em- 
ployment. The  usual  and  customary  way  of  moving 
the  rails  from  one  place  to  another  was  that  adopted 
in  handling  the  rail  in  question.  The  section  crew 
picked  it  up  with  their  hands,  carried  it  to  the  place 
where  it  was  needed  and  then,  at  the  word  of  some 
member  of  the  crew,  dropped  it  on  the  ground.  The 
plaintiff  knew  of  the  presence  of  the  ties  and  of  the 
presence  of  the  rail  brace.  Under  these  facts  the 
court  said:  "As  the  plaintiff's  claim  does  not  grow 
out  of  a  violation  of  such  statute  (national  safety 
statutes)  the  doctrine  of  assumed  risk  applies.  Un- 
der that  doctrine,  the  employe  assumes  those  risks 
which  are  known  to  or  are  clearly  observable  by 
him.  There  was  nothing  complicated  about  the  char- 
acter of  the  work.  The  operation  was  simple.  The 
brace  and  ties  were  clearly  observable  by  the  plain- 
tiff. It  is  not  insisted  that  the  rail  was  dropped  or 
thrown  in  a  negligent  manner.  Being  dropped  with- 
out negligence,  the  danger  of  being  struck  by  it  was 
one  of  the  risks  ordinarily  and  usually  incident  to 
the  employment  and  therefore  one  which  plaintiff 
assumed. ' '  ^^    Decedent  was  a  boiler  maker  helper 

28.  Truesdell  v.  Chesapeake  &  O.  Ry.  Co.,  159  Ky.  718.  Under 
quite  similar  facts,  Judge  Trimble  of  the  Kansas  City  Court  of 
Appeals  reached  the  same  conclusion  of  nonliability  on  other  grounds. 
Neith  V.  Delano,  Eec.  of  Wabash  R.  Co.,  —  Mo,  App.  — ,  171  S.  W.  1. 


ASSUMPTION    OF    RISK  211 

and  came  to  liis  death  in  the  machine  shops  of  a 
railroad  company.  In  these  shops  were  a  number 
of  tracks  and  between  these  tracks  were  what  are 
known  as  ''drop  pits,"  nine  feet  deep  and  about 
16  feet  long  which  were  used  when  large  driving 
wheels  were  taken  off  of  locomotives.  The  pit  was 
used  so  as  to  avoid  the  necessity  of  jacking  up  the 
locomotive  and  so  that  the  driving  wheels  could  be 
dropped  into  the  pit.  There  was  a  cover  over  about 
one-third  of  this  pit  at  either  end  but  no  cover  over 
about  one-third  of  it  in  the  center.  An  engine  was 
not  placed  over  this  pit  unless  the  wheels  were  to  be 
taken  off.  Decedent  had  been  working  the  shops 
for  some  time  and  understood  the  premises  per- 
fectly. The  decedent  was  found  at  the  bottom  of  the 
pit  under  circumstances  showing  that  he  fell  into  it, 
his  head  having  struck  against  the  concrete  bottom 
and  this  caused  his  death.  The  accident  occurred 
after  dark.  There  were  lights  in  the  shop  but  the 
proof  tended  to  show  that  these  lights  did  not  shine 
upon  the  drop  pit  and  did  not  sufficiently  illuminate 
it.  There  were  no  barriers  around  the  pit  and  no 
cover  over  one-third  of  it.  The  drop  pit  was  only  a 
few  feet  from  where  the  decedent  had  been  working 
all  day  and  he  knew  where  it  was.  On  these  facts 
the  trial  court  sustained  a  demurrer  to  the  evidence 
on  the  ground  of  assumption  of  risk  in  a  suit  under 
the  Federal  Employers'  Liability  Act  and  the  court's 
action  was  sustained  by  the  court  of  appeals.^^  A 
railroad  employe  who  worked  54  out  of  57  hours  for 
an  interstate  railroad  company  in  assisting  to  water 

29.  Glenn  v.  Cincninati,  N.  O.  &  T.  P.  Ey.  Co.,  157  Ky.  453. 


212        INJURIES  TO  INTEESTATE  EMPLOYES  ON  RAILROADS 

and  feed  cattle  in  transit  unloaded  for  feed,  rest 
and  water,  assumed  the  risk  of  injury  due  to  a  fall 
from  a  switch  engine  claimed  to  have  been  caused 
by  his  exhausted  condition,  as  he  knew  better  than 
anyone  else  his  condition  as  to  whether  he  was  tak- 
ing any  risks  in  continuing  to  work  under  such  cir- 
cumstances.^" 

§  106.  Defense  of  Assumption  of  Risk  Must  Be 
Pleaded  to  Be  Available. — Unless  from  all  the  evi- 
dence introduced  by  the  plaintiff  in  an  action  under 
the  federal  act,  the  court  can  conclude  as  a  matter  of 
law  that  the  plaintiff  assumed  the  risk,  the  defense  of 
assumption  of  risk  is  not  available  to  a  defendant 
in  an  action  under  the  statute  unless  pleaded  in  the 
answer.^^  In  the  Vickery  case,  cited  in  the  notes, 
defendant  insisted  that  the  plaintiff  had  assumed 
the  risk  of  a  switch  stand  being  erected  too  close  to 
a  railroad  track  without  a  warning  light.  To  this 
contention  the  court  said:  "The  risk  here  com- 
plained of  arose,  as  alleged,  from  the  negligent  erec- 
tion of  a  switch  stand  in  dangerous  proximity  to  one 
of  the  tracks  in  the  railroad  yard  and  the  negligent 
failure  to  have  a  warning  light  upon  it.  This  was 
not  a  risk  ordinarily  incident  to  the  railroad  service 
in  which  the  plaintiff  as  a  brakeman  was  employed 
but  one  arising  from  the  defendant's  negligence. 
The  plaintiff  may  have  known  of  it  and  have  volun- 
tarily assumed  it  but  he  did  not  do  so  by  entering 

30.  Schweig  v.  Chicago,  M.  &  St.  P.  E.  Co,  (C,  C.  A.),  216  Fed. 
750,  aff 'g  same  case  reported  in  205  Fed.  96, 

3L  Vickery  v.  New  Loudon  N.  E.  Co.,  87  Conn.  634,  4  N.  C,  C,  A, 
218n,  6  N.  C.  C.  A.  76n,  93n,  230n;  Uoyd  v.  Southern  Ey,  Co.,  —  N. 
C.  — ,  6  N.  C.  C.  A.  190n,  81  S.  E.  1003. 


ASSUMPTION  OF  RISK  213 

into  his  emplojnnent.  K  such  was  the  fact,  it  was 
incumbent  upon  the  defendant  to  plead  and  prove. ' ' 
§  107.  Confusing  Assumption  of  Risk  with  Con- 
tributory Negligence  in  Jury  Instructions  Under 
Federal  Act. — The  Supreme  Court  of  Appeals  of 
Virginia  in  an  opinion  handed  down  in  March, 
1914,^^  analyzed  and  reviewed  many  decisions  of  the 
national  and  state  courts  discussing  and  applying 
the  doctrine  of  assumption  of  risk  under  the  federal 
act.^^  In  the  Jacobs  case  the  question  before  the 
court  was  whether  a  railroad  brakeman  assumed  the 
risk  of  injury  from  a  pile  of  cinders  negligently  per- 
mitted to  accumulate  alongside  of  the  track  in  a 
railroad  yard  which  the  jury  found,  under  the 
instructions  of  the  court,  constituted  a  defect  or 
insufficiency  due  to  the  negligence  of  the  com- 
pany. Over  the  objections  of  the  railroad  com- 
pany, on  the  question  of  assumption  of  risk, 
the  court  instructed  the  jury  as  follows:  "The 
court  further  instructs  the  jury  that  knowledge  by 
the  plaintiff  of  the  unsafe  condition  of  the  said  road- 

32.  Southern  Ey.  Co.  v.  Jacobs,  —  Va.  — ,  6  N.  C.  C.  A.  94n,  I8611, 
81  S.  E.  99. 

33.  The  cases  cited,  analyzed  and  discussed,  were  the  following: 
Seaboard  A.  L.  Ry.  Co.  v.  Moore,  228  U.  S.  443,  57  L.  Ed.  907,  3  N. 
C.  C.  A.  812;  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  McGinnis,  228  U.  S.  173, 
57  L.  Ed.  785,  3  N.  C.  C.  A.  806,  4  N".  C.  C.  A.  926n;  Mondou  v. 
New  York,  N.  H.  &  H.  R.  Co.,  223  U.  S.  1,  56  L.  Ed.  327,  1  N.  C.  C.  A. 
875,  38  L.  R.  A.  (N.  S.)  44;  Central  V.  Ry.  Co.  v.  Bethune,  124  C. 
C.  A.  528,  206  Fed.  868;  Barker  v.  Kansas  City  M.  &  O.  Ry.  Co.,  88 
Kan.  767,  43  L.  R.  A.  (N.  S.)  1121;  Freeman  v.  Powell,  —  Tex.  Civ. 
App.  — ,  144  S.  W.  1033;  Choctaw  &  G.  Ry.  Co.  v.  McDade,  191 
U.  S.  64,  48  L.  Ed.  96;  Schlemmer  v.  Buffalo  R.  &  P.  Ry.  Co.,  205 
U.  S.  1,  51  L.  Ed.  681,  1  N.  C.  C.  A.  859n,  4  N.  C.  C.  A.  483n,  rev'g 
207  Pa.  198;  Texas  &  P.  E.  Co.  v.  Archibald,  170  U.  S.  665,  42  L. 
Ed.  1188, 


214        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

way  is  of  itself  no  defense  to  an  action  for  an  injury 
caused  to  him  thereby.  Such  knowledge,  however, 
if  the  jury  believe  from  the  evidence  that  he  had 
such  knowledge,  may  be  considered  by  the  jury  along 
with  all  the  evidence  in  the  case  in  determining 
whether  the  plaintiff  was  himself  guilty  of  negli- 
gence which  contributed  to  produce  the  injury  men- 
tioned in  the  declaration,  but  the  fact  that  the 
plaintiff  may  himself  have  been  guilty  of  contribu- 
tory negligence  was  not  a  bar  to  a  recovery,  but  the 
damages  shall  be  diminished  in  proportion  to  the 
amount  of  contributory  negligence,  if  such  there 
were,  which  they  may  believe  from  the  evidence  was 
attributable  to  said  plaintiff  under  the  circum- 
stances." 

The  defendant  on  the  other  hand  requested  the 
court  to  instruct  the  jury  as  follows  which  request 
was  denied  by  the  trial  court:  "A.  The  court  in- 
structs the  jury  that  if  they  believe  from  the  evi- 
dence that  the  existence  of  the  cinder  pile  was  known 
to  the  plaintiff  or  that  he  had  been  working  on  the 
Southern  Kailway  at  Lawrenceville  for  more  than  a 
year,  and  that  the  cinders  had  been  piled  at  the  same 
place  in  the  way  described  by  the  witness  for  many 
years  prior  to  the  accident,  and  that  the  plaintiff 
had  failed  to  show  that  he  had  made  complaint  or 
objection  on  account  of  the  cinder  pile,  then  he  as- 
sumed the  risk  of  danger  from  the  cinder  pile,  if 
there  was  any  danger  in  it,  and  the  Act  of  Congress 
approved  April  22,  1908,  permits  this  defense,  and 
the  jury  should  find  their  verdict  for  the  defendant. ' ' 

The  court  held  that,  under  the  facts,  the  defend- 


ASSUMPTION   OF  RISK  215 

ant's  refused  instruction  should  have  been  given 
and  that  it  was  error  to  give  plaintiff's  second  in- 
struction for  the  reason  that  under  the  federal  stat- 
ute assumption  of  risk  is  an  absolute  defense  as  at 
common  law,  the  court  holding  that  an  employe  as- 
sumes the  risk  of  injury  from  defective  appliances 
furnished  by  his  employer  only  when  the  defect  is 
known  to,  or  plainly  observable  by,  the  employe. 
Reviewing  the  cases  cited  in  the  preceding  note,  the 
court  said:  "The  cases  might  be  multiplied  to  any 
extent  to  show  that  the  doctrine  of  assumed  risks 
covers  more  than  those  risks  which  are  ordinarily 
incident  to  the  business,  and  embraces  the  use  of 
defective  appliances  and  work  of  almost  every  de- 
scription where  the  employe,  with  knowledge  of  the 
defect,  continues  to  use  it  without  notice  to  the  em- 
ployer. ' ' 

§  108.  Assumption  of  Risk  Eliminated  in  Actions 
for  Violation  of  Hours  of  Service  Act. — In  any  action 
under  the  federal  act  for  an  injury  to  an  employe 
within  its  terms  if  the  injury  or  death  is  caused  by  a 
violation  of  the  Federal  Hours  of  Service  Act  ^^  as- 
sumption of  risk  is  not  a  defense  to  the  action.^^ 

34.  Hours  of  Service  Act,  March  4,  1907  c.  2939,  34  Stat.  1415. 

35.  Schweig  v.  Chicago,  M,  &  St.  P.  E.  Co.  (C.  C.  A.),  216  Fed. 
750,  aff'g  same  case  reported  hx  205  Fed.  96. 


CHAPTER  VII 

CONTRIBUTORY  NEGLIGENCE  UNDER  FED- 
ERAL ACT 

§  109.  The   Statutory   Provision. 

§  110.  Eight  of   Eecovery  Under  Federal  Act   Not  Barred  by  Con- 
tributory Negligence. 

§  111.  When  Contributory  Negligence  of  Employe  Does  Not  Diminish 
Damages — Federal  Safety  Appliance  Act. 

§  112.  Contributory  Negligence  Defined. 

§  113.  How  Damages  Apportioned  When  Employe  Is  Guilty  of  Con- 
tributory Negligence. 

§  114.  Apportionment  of  Damages  Under  Federal  Act  Different  from 
Georgia  Statute. 

§115.  Employe's  Contributory  Negligence  to  Keduce  Damages  Must 
Proximately  Contribute  to  Injury. 

§  116.  Gross  Negligence  of  Plaintiff  and  Slight  Negligence  of  Defend- 
ant Cannot  Defeat  Eecovery. 

§  117.  When  Defendant's  Act  Is  No  Part  of  Causation,  Plaintiff  Can- 
not Eecover. 

§  118.  Erroneous  Instructions  on  Contributory  Negligence  Under  the 
Federal  Act. 

§  119.  Whether    Contributory    Negligence    Must    Be    Pleaded,    De 
termined  by  State  Law. 

§  109.  The  Statutory  Provision.— Section  3  of  the 
Federal  Employers'  Liability  Act  provides:  ^'That 
in  all  actions  hereafter  brought  against  any  such 
common  carrier  by  railroad  under  or  by  virtue  of 
any  of  the  provisions  of  this  act  to  recover  damages 
for  personal  injuries  to  an  employe,  or  where  such 
injuries  have  resulted  in  his  death,  the  fact  that  the 
employe  may  have  been  guilty  of  contributory  neg- 
ligence shall  not  bar  a  recovery,  but  the  damages 

216 


CONTRLBUTOEY  NEGLIGENCE  217 

shall  be  diminished  by  the  jury  in  proportion  to  the 
amount  of  negligence  attributable  to  such  employe: 
Provided,  That  no  such  employe  who  may  be  injured 
or  killed  shall  be  held  to  have  been  guilty  of  con- 
tributory negligence  in  any  case  where  the  violation 
by  such  common  carrier  of  any  statute  enacted  for 
the  safety  of  employes  contributed  to  the  injury  or 
death  of  such  employe." 

§  110.  Right  of  Recovery  Under  Federal  Act  Not 
Barred  by  Contributory  Negligence. — When  an  em- 
ploye of  a  common  carrier  by  railroad  is  injured  or 
killed  under  the  conditions  prescribed  in  the  federal 
act,  that  is,  while  the  carrier  is  engaged  and  while 
the  servant  is  employed  by  it  in  interstate  commerce, 
in  any  action  for  damages  for  such  injuries  due  to 
negligence,  the  right  to  recover  cannot  be  defeated 
by  showing  or  proving  that  the  employe's  negli- 
gence contributed  in  any  degree  to  his  injuries.  In 
this  respect  the  statute  is  a  radical  departure  from 
the  common  law  doctrine.  In  all  actions  under  the 
federal  act  the  employe's  contributory  negligence 
merely  diminishes  the  amount  of  his  damages  except 
in  cases  mentioned  in  the  next  section.^ 

1.  Pennsylvania  E.  Co.  v.  Cole  (C.  C.  A.),  214  Fed.  948;  Louis- 
ville &  N.  K.  Co.  V.  Heinig,  —  Ky.  — ,  171  S.  W.  853 ;  Grand  T.  W. 
R.  Co.  V.  Lindsay,  233  U.  S.  42,  58  L.  Ed.  838,  6  N.  C.  C.  A.  90,  91n, 
Ann.  Cas.  1914  C  168n;  Norfolk  &  W.  R.  Co.  v.  Earnest,  229  U.  S. 
114,  57  L.  Ed.  1096,  3  N.  C.  C.  A.  806,  Ann,  Cas.  1914  C  172n; 
Southern  Ey.  Co.  v.  Smith  (C.  C.  A.),  214  Ted.  942;  Charleston  & 
W.  C.  R.  Co.  V.  Brown,  13  Ga.  App.  744;  Louisville  &  N.  R.  Co.  v. 
Weue  (C.  C.  A.),  202  Fed,  887;  McDonald  v.  Railway  T.  Co.,  121 
Minn,  273;  Atchison,  T.  &  S.  F.  E.  Co.  v.  Tack,  —  Tex.  Civ.  App. 
— ,  130  S.  W.  596;  Colasurdo  v.  Central  R,  Co,  of  New  Jersey,  180 
Fed.  832,  afe'd  in  113  C.  C,  A,  379,  192  Fed.  901;  Missouri,  K.  &  T. 
E.  Co.  V.  Bunkley,  —  Tex.  Civ.  App.  — ,  5  N.  C.  C.  A.  583n,  153  S.  W. 


218        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

§  111.  When  Contributory  Negligence  of  Employe 
Does  Not  Dimmish  Damages — Federal  Safety  Appli- 
ance Act. — Even  though  an  employe  injured  or 
killed  while  engaged  in  interstate  commerce  was 
guilty  of  contributory  negligence,  his  damages  can- 
not be  reduced  when  the  violation  of  a  federal  stat- 
ute enacted  for  the  safety  of  employes,  such,  for 
instance,  as  the  Federal  Safety  Appliance  Act,  con- 
tributed as  a  cause  to  the  injury  or  death.^  The 
clause  "statute  enacted  for  the  safety  of  employes" 
in  §  3  of  the  Federal  Employers '  Liability  Act  refers 
only  to  federal  statutes  and  not  to  state  laws.^ 
/  §  112.  Contributory  Negligence  Defined. — Con- 
tributory negligence  under  the  Federal  Employers' 
Liability  Act  has  been  defined  by  the  United  States 
Supreme  Court  in  the  following  language:  "Con- 
tributory negligence  involves  the  notion  of  some 
fault  or  breach  of  duty  on  the  part  of  the  employe, 

937;  Neil  v.  Idaho  &  W.  N.  E.  Co.,  22  Idaho  74;  Fogerty  v.  Northern 
P.  B.  Co.,  —  Wash.  — ,  133  Pac.  609;  rieming  v.  Norfolk  S.  Ey.  Co., 
160  N.  C.  196,  6  N.  C.  C.  A.  78ii,  229n;  Southern  Ey.  Co.  v.  Hill, 
139  Ga.  549;  Ellis  v.  Louisville,  H.  &  St.  L.  Ey.  Co.,  155  Ky.  745, 
6  N.  C.  C.  A.  103n,  543n;  Nashville,  C.  &  St.  L.  Ey.  Co.  v.  Henry, 
158  Ky.  88,  4  N.  C.  C.  A.  495n,  6  N.  C.  C.  A.  99n,  106n;  Nashville, 
C.  &  St.  L.  Ey.  Co.  v.  Banks,  156  Ky.  609,  6  N.  C.  C.  A.  99n,  105n, 
186n;  Pankey  v.  Atchison,  T.  &  S.  F.  Ey.  Co.,  180  Mo.  App.  185;  Cain 
V.  Southern  Ey.  Co.,  199  Fed.  211;  Pfeiffer  v.  Oregon  W.  E.  &  N. 
Co.,  —  Ore.  — ,  7  N.  C.  C.  A.  685,  144  Pac.  762;  Eoss  v.  St.  Louis 
&  S.  F.  Ey.  Co.,  —  Kan.  — ,  144  Pac.  844;  Tilgham  v.  Seaboard  A.  L. 
Ey.  Co.,  —  N.  C.  — ,  83  S.  E.  315, 

2.  Southern  Ey.  Co.  v.  Crockett,  234  U.  S.  725,  58  L.  Ed.  1564, 
6  N.  C.  C.  A.  94n;  Grand  T.  W.  Ey.  Co.  v.  Lindsay,  233  U.  S.  42, 
58  L.  Ed.  838,  6  N.  C.  C.  A.  90,  91n,  Ann.  Cas.  1914  C  168n;  Norfolk 
&  W.  E.  Co.  v.  Earnest,  229  U.  S.  114,  57  L.  Ed.  1096,  3  N.  C.  C.  A. 
806,  Ann.  Cas.   1914  C  172n. 

3.  Seaboard  A.  L.  Ey.  Co.  v.  Horton,  233  U.  S.  492,  58  L.  Ed. 
1062,  6  N.  C.  C.  A.  75n,  95n,  101,  102n. 


CONTRIBUTORY   NEGLIGENCE  219 

and  since  it  is  ordinarily  his  duty  to  take  some  pre- 
caution for  his  own  safety  when  engaged  in  a  haz- 
ardous occupation,  contributory  negligence  is  some- 
times defined  as  a  failure  to  use  such  care  for  his 
safety  as  ordinarily  prudent  employes  in  similar  cir- 
cumstances would  use. "  ^  In  another  case  before 
the  Supreme  Court  of  the  United  States  the  follow- 
ing definition  of  contributory  negligence  was  ap- 
proved: "Contributory  negligence  is  the  negligent 
act  of  a  plaintiff  which,  concurring  and  cooperating 
with  the  negligent  act  of  a  defendant,  is  the  proxi- 
mate cause  of  the  injury. ' '  ^ 

§  113.  How  Damages  Apportioned  When  Employe  •  / 
Is  Guilty  of  Contributory  Negligence. — Where  the 
negligence  which  caused  the  injury  or  death  of  an 
employe  is  partly  attributable  to  the  employe  him- 
self and  partly  attributable  to  the  carrier,  the  plain- 
tiff cannot  recover  full  damages  but  only  such  a 
proportional  amount  bearing  the  same  relation  to 
the  full  amount  as  the  negligence  attributable  to  the 
carrier  bears  to  the  entire  negligence  attributable  to 
both.*^  Justice  Vandevanter,  speaking  for  the  Su- 
preme Court  in  the  case  cited,  said :  ' '  Tlie  statutory 
direction  that  the  diminution  shall  be  '  in  proportion 
to  the  amount  of  negligence  attributable  to  such 
employe'  means  that,  where  the  causal  negligence 
is  partly  attributable  to  him  and  partly  to  the  car- 

4.  Seaboard  A.  L.  Ey.  Co.  v.  Horton,  233  U.  S.  492,  58  L.  Ed.  1062, 
6  N.  C.  C.  A.  75n,  95ii,  101,  lG2n. 

5.  Norfolk  &  W.  E.  Co.  v.  Earnest,  229  U.  S.  114,  57  L.  Ed.  1096, 
3  N.  C.  C.  A.  806,  Ann.  Gas.  1914  C  172n. 

6.  Norfolk  &  W.  Ey.  Co.  v.  Earnest,  229  U.  S.  114,  57  L.  Ed.  1096, 
3  N.  C.  C.  A.  806,  Ann.  Cas.  1914  C  172n. 


220        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

rier,  lie  shall  not  recover  full  damages,  but  only  a 
proportional  amount  bearing  the  same  relation  to 
the  full  amount  as  the  negligence  attributable  to  the 
carrier  bears  to  the  entire  negligence  attributable 
to  both;  the  purpose  being  to  abrogate  the  common 
law  rule  completely  exonerating  the  carrier  from 
liability  in  such  cases  and  to  substitute  a  new  rule, 
confining  the  exoneration  to  a  proportional  part  of 
the  damages,  corresponding  to  the  amount  of  negli- 
gence attributable  to  the  employe." 

§  114.  Apportionment  of  Damages  Under  Federal 
Act  Different  from  Georgia  Statute. — Even  prior  to 
the  passage  of  the  Federal  Employers '  Liability  Act, 
a  few  states  had  by  statutory  enactment  adopted  the 
doctrine  of  comparative  negligence  as  distinguished 
from  contributory  negligence.  The  Georgia  statute 
respecting  the  apportionment  of  damages  has  been 
construed  to  mean  that  where  the  injury  is  the  result 
of  mutual  negligence  there  can  be  no  recovery  unless 
the  person  inflicting  the  injury  is  more  in  fault  than 
the  one  who  is  injured.  But  such  rule  is  not  to  be 
applied  in  the  apportionment  of  damages  under  the 
federal  act  for  if  the  carrier's  negligence  caused  the 
injury  in  part,  the  contributory  negligence  of  the 
employe  does  not  defeat  the  action  no  matter  if  the 
carrier  is  less  in  fault  than  the  employe.''^ 

§  115.  Employe's  Contributory  Negligence  to  Re- 
duce Damages  Must  Proximately  Contribute  to  In- 
jury.— The  damages  recoverable  by  an  employe  for 
injuries  due  to  the  negligence  of  a  common  carrier 
cannot  be  reduced  by  reason  of  any  slight  negligence 

7.  Southern  Ey.  Co.  v.  Hill,  139  Ga.  549. 


CONTRIBUTORY   NEGLIGENCE  221 

on  the  part  of  the  employe.  Before  the  damages 
can  be  reduced  the  contributory  negligence  of  the 
employe  must  directly  and  proximately  contribute 
to  the  injury.  In  other  words,  the  negligence  of  the 
employe  in  order  to  reduce  the  damages,  must  be 
causal.^ 

§116.  Gross  Negligence  of  Plaintiff  and  Slight  l^ 
Negligence  of  Defendant  Cannot  Defeat  Recovery.— 
Under  the  federal  act  if  the  carrier  is  negligent  in 
any  degree  and  such  negligence  contributes  as  a 
proximate  cause  to  the  injury,  plaintiff's  right  to 
recover  cannot  be  defeated  although  his  negligence 
might  have  been  gross  and  the  negligence  of  the  de- 
fendant comparable  therewith  slight.^  And  a  de- 
murrer to  the  evidence  or  a  nonsuit  cannot  in  any 
case  under  the  federal  act  be  given  or  sustained  on 
the  ground  of  plaintiff's  contributory  negligence. ^'^ 
Judge  Knappen,  speaking  for  the  Federal  Circuit 
Court  of  Appeals  in  Pennsylvania  Co.  v.  Cole,  cited 
supra,  said:  "But  the  Employers'  Liability  Act  ex- 
pressly abrogates  the  common  law  rule  under  which 
action  was  barred  by  the  negligence  of  the  plaintiff 
proximately  contributing  to  the  accident  and  sub- 

8.  lUinois  C.  E.  Co.  v.  Porter,  207  Fed.  311,  6  N.  C.  C.  A.  98n,  205n. 

9.  New  York,  C.  &  St.  L.  R.  Co.  v.  Niebel  (C.  C.  A.),  214  Fed. 
952;  Pennsylvania  Co.  v.  Cole  (C.  C.  A.),  214  Fed.  948;  LouisvUle 
&  N.  E.  Co.  V.  Heinig,  —  Ky.  — ,  171  S.  W.  853;  Philadelphia,  B.  & 
W.  E.  Co.  V.  Tucker,  35  App.  Cas.  (D.  C.)  123,  1  N.  C.  C.  A.  841n; 
Louisville  &  N.  Ey.  Co.  v.  Lankford,  126  C.  C.  A.  247,  209  Fed.  321, 
6  N.  C.  C.  A.  86ii,  106n. 

10.  Sandidge  v.  Atchison,  T.  &  S.  F.  Ey.  Co.,  113  C.  C.  A.  653, 
193  Fed.  867;  Horton  v.  Seaboard  A.  L.  Co.,  157  N.  C,  146;  Louisville 
&  N.  Ey.  Co.  V.  Wene,  121  C.  C.  A.  245,  202  Fed.  887. 


222        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

stitntes  therefor  the  rule  of  comparative  negligence. 
Under  this  act,  no  degree  of  negligence  on  the  part 
of  the  plaintiff,  however  gross  or  proximate,  can,  as 
a  matter  of  law,  bar  recovery. ' ' 

§  117.  When  Defendant's  Act  Is  No  Part  of  Causa- 
tion, Plaintiff  Cannot  Recover. — On  the  other  hand 
if  the  plaintiff's  act  is  the  sole  cause  of  his  injury 
without  any  act  on  the  part  of  the  defendant  con- 
tributing as  a  part  of  the  causation,  there  can  be  no 
recovery  under  the  federal  act.^^  Whether  under 
the  facts  of  a  particular  case  the  plaintiff's  negli- 
gence was  the  sole  cause  of  his  injury  or  whether 
the  negligence  of  the  defendant  contributed  as  a  part 
of  the  causation  has  already  been  raised  in  cases 
under  the  federal  act  and  it  is  frequently  a  difficult 
question  to  solve.  Such  questions  will  no  doubt  arise 
in  the  future  in  other  cases  for  the  reason  that  if  the 
plaintiff's  negligence  was  the  sole  cause  of  his  injury 
there  can  be  no  recovery  but  if  the  defendant's  neg- 
ligence contributes  as  a  proximate  cause,  the  plain- 
tiff can  recover  no  matter  how  gross  his  negligence 
may  be.  In  two  cases,  Pankey  v.  Railroad  and  Ellis 
V.  Eailroad,  cited  supra,  the  courts  denied  a  recovery 
under  the  federal  act  for  the  reason  that  under  the 
facts  the  plaintiff's  act  was  the  sole  cause  of  his 
injury.  On  the  other  hand  courts  have  denied  the 
application  of  the  same  principle  under  the  facts  and 

11.  Grand  T.  Ey.  Co.  v.  Lindsay,  233  U.  S.  42,  58  L.  Ed.  838, 
G  N.  C.  C.  A.  90,  91n,  Ann.  Cas.  1914  0  168n;  Pankey  v.  Atchison, 
T.  &  S.  F.  Ey.  Co.,  180  Mo.  App.  185 ;  Ellis  v.  Louisville,  H.  &  St.  L. 
Ey.  Co.,  155  Ky.  745,  6  N.  C.  C.  A.  103n,  543n;  Pfeiffer  v.  Oregon, 
W.  E.  &  N.  Co.,  —  Ore.  — ,  7  N.  C.  C.  A.  685,  144  Pac.  762. 


CONTRIBUTORY   NEGLIGENCE  223 

held  the  defendant's  act  was  a  part  of  the  causa- 
tion.i2 

§  118.  Erroneous  Instructions  on  Contributory 
Neg'ligence  Under  the  Federal  Act. — In  an  action 
under  the  federal  act,  a  trial  court  instructed  the  jury 
as  to  the  effect  of  contributory  negligence  as  follows: 
''Contributory  negligence  is  the  negligent  act  of  a 
plaintiff  which,  concurring  and  co-operating  with 
the  negligent  act  of  a  defendant,  is  the  proximate 
cause  of  the  injury.  If  you  should  find  that  the 
plaintiff  was  guilty  of  contributory  negligence,  the 
act  of  Congress  under  which  this  suit  was  brought 
provides  that  such  contributory  negligence  is  not  to 
defeat  a  recovery  altogether,  but  the  damages  shall 
be  diminished  by  the  jury  in  proportion  to  the 
amount  of  negligence  attributable  to  such  employe. 
So,  if  you  reach  that  point  in  your  deliberations 
where  you  find  it  necessary  to  consider  the  defense 
of  contributory  negligence,  the  negligence  of  the 
plaintiff'  is  not  a  bar  to  a  recovery,  but  it  goes  by  way 
of  diminution  of  damages  in  proportion  to  his  negli- 
gence, as  compared  with  the  negligence  of  the  de- 
fendant. If  the  defendant  relies  upon  the  defense 
of  contributory  negligence,  the  burden  is  upon  it  to 
establish  that  defense  by  a  preponderance  of  the 
evidence."  The  phrase  in  the  quoted  instruction, 
"as  compared  with  the  negligence  of  the  defendant" 

12.  Pennsylvania  Co.  v.  Cole  (C.  C.  A.),  214  Fed.  948;  New  York, 
C.  &  St.  L.  E.  Co.  V.  Niebel  (C.  C.  A.),  214  Fed.  952;  Louisville  & 
N.  R.  Co.  V.  Heinig,  —  Ky.  — ,  171  S.  W.  853;  Koss  v.  St.  Louis  & 
S.  F.  Ry.  Co.,  —  Kan.  — ,  144  Pac.  844;  Spokane  &  I.  E.  R.  Co.  v. 
Campbell,  217  Fed.   (C.  C.  A.)   518. 


224        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

was  condemned  by  the  Supreme  Court  of  the  United 
States  as  being  improper  under  the  federal  act.^^ 
Concerning  this  instruction  Mr.  Justice  Vandevan- 
ter,  speaking  for  the  court,  said:  "The  other  crit- 
icism deserves  more  discussion.  The  thought  which 
the  instruction  expressed  and  made  plain  was  that, 
if  the  plaintiff  had  contributed  to  his  injury  by  his 
own  negligence,  the  diminution  in  the  damages 
should  be  in  proportion  to  the  amount  of  his  negli- 
gence. This  was  twice  said,  each  time  in  terms  read- 
ily understood.  But  for  the  use  in  the  second  in- 
stance of  the  additional  words  'as  compared  with 
the  negligence  of  the  defendant'  there  would  be  no 
room  for  criticism.  Those  words  were  not  happily 
chosen,  for  to  have  reflected  what  the  statute  con- 
templates they  should  have  read  'as  compared  with 
the  combined  negligence  of  himself  and  the  defend- 
ant.'  We  say  this  because  the  statutory  direction 
that  the  diminution  shall  be  'in  proportion  to  the 
amount  of  negligence  attributable  to  such  employe' 
means,  and  can  only  mean,  that,  where  the  causal 
negligence  is  partly  attributable  to  him  and  partly 
to  the  carrier,  he  shall  not  recover  full  damages,  but 
only  a  proportional  amount,  bearing  the  same  rela- 
tion to  the  full  amount  as  the  negligence  attributa- 
ble to  the  carrier  bears  to  the  entire  negligence 
attributable  to  both;  the  purpose  being  to  abrogate 
the  common  law  rule  completely  exonerating  the 
carrier  from  liability  in  such  a  case,  and  to  substi- 
tute a  new  rule,  confining  the  exoneration  to  a  pro- 
is.  Norfolk  &  W.  Ey.  Co.  v.  Earnest,  229  U.  S.  114,  57  L.  Ed.  1096, 
3  N.  C.  C.  A.  806,  Am.  Cas.  1914  C  172n. 


CONTRIBUTORY   NEGLIGENCE  225 

portional  part  of  the  damages,  corresponding  to  the 
amount  of  negligence  attributable  to  the  employe. 
Second  Employers'  Liability  Cases  (Mondou  v.  New 
York,  N.  H.  &  H.  E.  Co.),  223  U.  S.  1,  50,  56  L.  Ed. 
.327,  346  (1  N.  C.  C.  A.  875),  38  L.  R.  A.  (N.  S.)  44, 
32  Sup.  Ct.  Rep.  169." 

An  instruction  that  if  the  employe  was  guilty  of 
negligence  which  contributed  to  his  injuries,  the 
jury  must  diminish  the  damages  in  proportion  to  the 
amount  of  negligence  attributable  to  him,  was  held 
erroneous  for  the  same  reason.^^  In  another  action 
under  the  federal  act  the  court  instructed  the  jury 
that,  if  the  deceased  was  guilty  of  contributory  neg- 
ligence, and  "that  said  negligence  directly  contrib- 
uted to  his  injurj^,  you  should  take  said  negligence 
into  consideration  in  arriving  at  the  amount  of  your 
verdict  as  hei-einafter  explained,  if  you  find  from 
the  evidence  that  the  plaintiff  is  entitled  to  recover, 
but  if  you  find  from  the  evidence  that  the  contribu- 
tory negligence  of  the  deceased.  Otto  N.  Ross,  was 
the  sole  and  proximate  cause  of  his  death,  then  you 
should  find  a  verdict  for  the  defendant. ' '  A  verdict 
was  returned  for  the  defendant  and  the  trial  court 
set  it  aside  because  the  instruction  was  erroneous  in 
the  latter  part  as  to  contributory  negligence.  The 
appellate  court  held  that  the  plaintiff  had  a  right  to 
a  plain  and  unambiguous  instruction  to  the  effect 
that  contributory  negligence  was  not  a  complete 
defense  under  the  federal  statute  referred  to,  but 
should  be  considered  in  mitigation  of  damages;  and 

14.  Nashville,  C.  &  St.  L.  E.  Co.  v.  Banks,  156  Ky.  609,  6  N.  C.  C.  A. 
99n,  105n,  186n. 

Koberts  Liabilitici — 15 


226        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

that,  as  the  language  used  was  doubtful  in  meaning 
and  confusing,  and  the  trial  judge  believed  that  the 
instruction  did  not  sufficiently  inform  the  jury,  the 
order  granting  a  new  trial  was  not  reversed. ^^ 

§  119.  Whether  Contributory  Negligence  Must  Be 
Pleaded,  Determined  by  State  Law. — The  question 
whether  contributory  negligence  of  the  injured  em- 
ploye in  order  to  be  available  to  the  defendant  must 
be  pleaded  is  to  be  determined  by  the  laws  of  the 
state  where  the  action  is  pending  for  such  a  matter 
relates  to  procedure  and  the  laws  of  the  state  govern 
as  to  procedure  even  in  actions  under  the  Federal 
Employers'  Liability  Act.  The  general  rule  is  that 
unless  the  plaintiff's  contributory  negligence  ap- 
pears as  a  matter  of  law  by  his  proof  the  plea  of  con- 
tributory negligence  must  be  specially  pleaded; 
though  a  few  courts  hold  to  the  contrary ;  but  as  con- 
tributory negligence  under  the  federal  act  only  miti- 
gates the  damages  it  is  at  least  questionable  whether 
it  must  be  specially  pleaded  for  the  general  rule  is, 
unless  otherwise  provided  by  statute,  matters  in 
diminution  of  damages  need  not  be  specially  pleaded. 
Such  was  the  rule  at  common  law.^^  A  statute  of 
North  Carolina  provides  that  ''in  all  actions  to  re- 
cover damages  by  reason  of  defendant's  negligence, 
where  contributory  negligence  is  relied  on  as  a  de- 
fense, it  shall  be  set  up  in  the  answer  and  proved 
at  the  trial,"    Another  section  of  the  statutory  law 

15.  Ross  V.  St.  Louis  &  S.  F.  By.  Co.,  —  Kan.  — ,  144  Pac.  844. 

16.  Greeneleaf  on  Evidence  (14th  Ed.)  393;  Beck  v.  DoweU,  40  Mo. 
App.  71;  Smith  v.  Lisher,  23  Ind.  502;  Osborn  v.  Lovell,  36  Mich. 
250;  Delevan  v.  Bates,  1  Mich.  97;  Blizzard  v.  Applegate,  61  Ind. 
368;  Atteberry  v.  Powell,  29  Mo.  429,  77  Am.  Dec.  579. 


CONTRIBUTORY  NEGLIGENCE  227 

of  the  same  state  provided  generally  that  matters 
in  diminution  of  damages  need  not  be  specially 
pleaded.  In  an  action  by  an  employe  against  a  com- 
mon carrier  for  injuries  under  the  Federal  Employ- 
ers' Liability  Act,  it  was  held  by  the  supreme  court 
of  that  state  that  the  defendant  could  not  avail  it- 
self of  the  partial  defense  of  contributory  negli- 
gence unless  the  same  was  pleaded  in  its  answer. 
The  court  properly  held  that  the  specific  statute  men- 
tioned controlled  in  preference  to  the  general  statute 
as  to  matters  in  mitigation.^^ 

17.  Fleming  v.  Norfolk  S.  Ey.  Co.,  160  N.  C.  196,  6  N.  C.  C.  A. 
78ii,  229n. 


CHAPTER  VIII 

CONTEACTS  FOKBIDDEN  BY  FEDERAL  ACT 

§  120.  The  Statutory  Provision. 

§  121.  Statute  Prohibiting  Carriers  from  Evading  Liability  by  Con- 
tracts  or  Regulations,   Valid. 

§  122.  Statute  Applies  to  Existing  as  Well  as  Future  Contracts. 

§  123.  Acceptance  of  Benefits  from  Employer  No  Bar  to  Suit  Against 
Joint  Tort-feasor. 

§  120.  The  Statutory  Provision. — Section  5  of  the 
Federal  Employers'  Liability  Act  provides:  "That 
any  contract,  rule,  regulation,  or  device  whatsoever, 
the  purpose  or  intent  of  which  shall  be  to  enable  any 
common  carrier  to  exempt  itself  from  any  liability 
created  by  this  act,  shall  to  that  extent  be  void; 
Provided,  That  in  any  action  brought  against  any 
such  common  carrier  under  or  by  virtue  of  any  of  the 
provisions  of  this  act,  such  common  carrier  may  set 
off  therein  any  sum  it  has  contributed  or  paid  to 
any  insurance,  relief  benefit,  or  indemnity  that  may 
have  been  paid  to  the  injured  employe  or  the  person 
entitled  thereto  on  account  of  the  injury  or  death 
for  which  said  action  was  brought. ' ' 

§  121.  Statute  Prohibiting  Carriers  from  Evading 
Liability  by  Contracts  or  Regulations,  Valid. — The 
question  of  the  validity  of  the  contract  provision 
quoted  in  the  foregoing  paragraph  has  been  finally 
established  by  the  United  States  Supreme  Court.^ 

1.  Philadelphia,  B.  &  W.  R.  Co.  v.  Schubert,  224  U.  S.  603,  56  L. 
Ed.  911,  1  N.  C.  C.  A.  892,  6  N.  C.  C.  A.  103n;  Burnett  v.  Atlantic 

228 


CONTRACTS   FORBIDDEN    BY    ACT  229 

In  the  Schubert  case  the  plaintiff  was  an  employe 
of  the  defendant.  The  company  pleaded  that  the 
plaintiff  was  at  the  time  a  member  of  its  "relief 
fund"  under  a  contract  of  membership  in  which  it 
was  agreed  that  the  company  should  apply  as  a 
voluntary  contribution  from  his  wages  a  certain 
sum  a  month  for  the  purpose  of  securing  certain 
benefits  and  it  was  also  stipulated  that  the  accept- 
ance of  benefits  by  an  employe  after  injury  should 
constitute  a  release  from  all  claims  for  damages. 
The  plaintiff  since  his  injury  had  voluntarily  ac- 
cepted benefits  to  the  amount  of  $75.00.  A  demurrer 
to  this  plea  was  sustained  in  the  trial  court.  The 
appellate  court  held  that  Congress,  in  declaring  by 
the  statute  that  such  contracts  were  void,  did  not 
exceed  its  authority  and  affirmed  the  cause. 

§  122.  Statute  Applies  to  Existing:  as  Well  as  Fu- 
ture Contracts. — The  provisions  of  §  5  applies  to 
contracts  made  before  the  passage  of  the  Federal 
Employers'  Liability  Act  as  well  as  to  contracts  en- 
tered into  after  the  passage  of  the  law.^  In  the  case 
cited  in  the  notes  it  was  contended  by  the  railroad 
company  that  the  statute  did  not  apply  to  contracts 
entered  into  before  the  statute  was  enacted  and  that 
if  the  court  should  take  the  view  that  the  statute 
applied  to  preexisting  contracts,  that  the  law  was 

C.  L.  R.  Co.,  163  N.  C.  186,  6  N.  C.  C.  A.  103,  104n;  Baltimore  &  O. 
R.  Co.  V.  Gawinske,  116  C.  C.  A.  579,  197  Fed.  31;  Chicago,  B.  &  Q. 
E.  Co.  V.  McGuire,  219  U.  S.  549,  55  L.  Ed.  328,  construing  a  similar 
provision  of  the  statute  of  Iowa;  Hogarty  v.  Philadelphia  R.  Ry.  Co., 
245  Pa.  443. 

2.  PhUadelphia,  B.  &  W.  R.  Co.  v.  Schubert,  224  U.  S.  603,  56  L. 
Ed.  911,  1  N.  C.  C.  A.  892,  6  N.  C.  C.  A.  103n. 


230        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

invalid  and  unconstitutional.  To  this  contention 
Justice  Hughes,  speaking  for  the  Supreme  Court, 
said :  ' '  Nor  can  the  further  contention  be  sustained 
that,  if  so  construed,  the  section  is  invalid.  The 
power  of  Congress,  in  its  regulation  of  interstate 
commerce,  and  of  commerce  in  the  District  of  Co- 
lumbia and  in  the  territories,  to  impose  this  liability, 
was  not  fettered  by  the  necessity  of  maintaining  ex- 
isting arrangements  and  stipulations  which  would 
conflict  with  the  execution  of  its  policy.  To  subor- 
dinate the  exercise  of  the  federal  authority  to  the 
continuing  operation  of  previous  contracts,  would 
be  to  place,  to  this  extent,  the  regulation  of  inter- 
state commerce  in  the  hands  of  private  individuals 
and  to  withdraw  from  the  control  of  Congress  so 
much  of  the  field  as  they  might  choose  by  prophetic 
discernment  to  bring  within  the  range  of  their  agree- 
ments. The  Constitution  recognizes  no  such  limita- 
tion. It  is  of  the  essence  of  the  delegated  power  of 
regulation  that,  within  its  sphere.  Congress  should 
be  able  to  establish  uniform  rules,  immediately  ob- 
ligatory, which  as  to  future  action  should  transcend 
all  inconsistent  provisions.  Prior  arrangements 
were  necessarily  subject  to  this  paramount  author- 
ity." ^ 

§  123.  Acceptance  of  Benefits  from  Employer  No 
Bar  to  Suit  Against  Joint  Tort-Feasor. — Although 

3.  In  reaching  this  conclusion  the  court  cited  and  quoted  from  the 
following  cases:  Louisville  &  N.  E.  Co.  v.  Mottley,  219  U.  S,  467, 
55  L.  Ed.  297,  34  L.  R.  A.  (N.  S.)  671;  Addyston  Pipe  &  Steel  Co. 
V.  United  States,  175  U.  S.  211,  228,  44  L.  Ed.  136;  Armour  Packing 
Co.  V.  United  States,  209  U.  S.  56,  52  L.  Ed.  681 ;  Atlantic  C,  L.  E.  Co. 
V.  Riverside  Mills,  219  U.  S.  186,  55  L.  Ed.  167,  31  L.  R.  A.  (N.  S.)  7n. 


CONTRACTS   FORBIDDEN   BY   ACT  231 

under  the  laws  of  a  state,  contracts  between  rail- 
road companies  and  their  employes  which  provide 
that  if  an  employe  accept  benefits  from  a  relief  fund 
after  receiving  an  injury,  are  deemed  valid,  yet,  if 
such  carrier  and  the  employe  were  at  the  time  of  his 
injuries  engaged  in  interstate  commerce,  the  accept- 
ance of  benefit  is  not  a  bar  in  an  action  against  a 
joint  tort-feasor.^  In  the  case  cited  the  plaintiff  was 
injured  while  working  on  his  employer's  cars  which 
were  being  moved  over  another  company's  tracks, 
the  latter  being  the  owner  and  the  former  the  li- 
censee. The  actionable  negligence  was  permitting 
a  semaphore  post  to  be  placed  too  close  to  the  track. 
The  plaintiff  accepted  his  relief  benefits  from  the 
company  which  employed  him  and  sued  the  other 
company.  The  other  company  set  up  as  a  defense 
that  he  had  accepted  the  benefits  under  his  contract 
and  that  having  therefore  released  one  tort-feasor, 
the  other  was  not  liable.  But  the  Supreme  Court 
of  Illinois  held  that  since  the  federal  act  provided 
that  such  contracts  were  no  longer  a  defense  when 
the  company  was  engaged  in  and  the  injured  servant 
employed  in  interstate  commerce,  that  such  defense 
although  valid  under  the  laws  of  the  state,  could  not 
inure  to  the  benefit  of  the  joint  tort-feasor. 

4.  Wagner   v.   Chicago   &   A.   E.   Co.,   —   lU.  — ,   106   N.   E.   809, 
(Cartwright  and  Dunn,  JJ.,  dissenting.) 


CHAPTER  IX 

JUEISDICTION  OF  STATE  AND  FEDERAL 
COURTS 

§  124.  Suits  May  Be  Brought  in  Federal  Courts. 

§  125.  Actions   May   Also  Be   Brought  in   State   Courts  Under  Fed- 
eral Act. 
§  126.  Causes  Instituted  in  State  Courts  Not  Eemovable  to  Federal 

Courts. 
§  127.  EemovabUity   When   Petition   States   Cause   of   Action   Under 

State    Law    ia    One    Count    and    Under    Federal    Law    in 

Another  Count. 
§  128.  Action   Eemovable   When   Petition   Does   Not   State   Cause   of 

Action  Under  Federal  Act  Although  Intended  to  Be  Under 

that  Statute. 
§  129.  Statute  of  Limitation. 
§  130.  Judgment   of   Highest  State  Court  in   Action   Under  Federal 

Act   May   Be   Eeviewed   by   United   States   Supreme   Court, 

When, 
§  131.  Eecord  Must  Show  Eight  Under  Federal  Laws  Was  Specifically 

Set  Up  and  Denied  by  State  Court. 
§  132.  Contention    That   There   Is   or   Is   Not   Sufficient  Evidence   to 

Show  Liability,  Will  Support  Writ  of  Error. 
§  133.  Power  to  Eeview  Does  Not  Extend  to  Questions  Merely  Inci- 
dental and  Non-federal  in  Character. 
§  134.  Euling  of  State  Court  that  Federal  Question  Was  Sufficiently 

Eaised  Binding  Upon  United  States  Supreme  Court. 
§  135.  Federal  Questions  to  Support  Writ  of  Error  to  United  States 

Supreme  Court,  Need  Not  Be  Eaised  by  the  Pleadings. 
§  136.  Pleading    Federal   Act   and   Submitting   Case   to   Jury   Under 

State  Law,  No  Denial  of  Federal  Eight. 
§  137.  When   Petition   Not  Stating  a  Good   Cause  of   Action  Under 

Federal  Act  Eaises  a  Federal  Question. 
§  138.  Claim  that  Verdict  Is  Excessive  Not  Eeviewable  by  Writ  of 

En-or. 

§  124.  Siiits  May  Be  Brought  in  Federal  Courts.— 
One  of  the  1910  amendments  to  the  Federal  Employ- 

232 


JURISDICTION   OP   COURTS  233 

ers'  Liability  Law,  now  §  6  of  the  act,  provides  that 
an  action  may  be  brought  under  the  act  in  a  circuit 
court  of  the  United  States  in  the  district  of  the  resi- 
dence of  the  defendant,  or  in  which  the  cause  of 
action  arose,  or  in  which  the  defendant  shall  be  doing 
business  at  the  time  of  commencing  such  action. 

§  125.  Actions  May  Also  Be  Brought  in  State 
Courts  Under  Federal  Act. — One  of  the  amendments 
of  1910  to  the  federal  act  further  provides  that  the 
jurisdiction  of  the  courts  of  the  United  States  under 
the  act  shall  be  concurrent  with  that  of  the  courts 
of  the  several  states,  and  no  case  arising  under  the 
act  and  brought  in  any  state  court  of  competent 
jurisdiction,  shall  be  removed  to  any  court  of  the 
United  States.  Prior  to  the  passage  of  the  1910 
amendment  the  Supreme  Court  of  Connecticut  had 
held  that  state  courts  had  no  jurisdiction  of  actions 
under  the  Federal  Employers'  Liability  Act.^  But 
when  this  case  reached  the  Supreme  Court  of  the 
United  States  that  court  held  that  state  courts  had 
jurisdiction  of  actions  under  the  federal  act  even 
before  the  amendment  of  1910  and  the  decision  of 
the  state  court  was  overruled. ^ 

§  126.  Causes  Instituted  in  State  Courts  Not  Re- 
movable to  Federal  Courts. — Although  the  statute, 
in  the  amendment  of  1910  plainly  declares  that  no 
case  arising  under  the  federal  act  and  brought  in  a 
state  court  of  competent  jurisdiction  shall  be  remov- 
able to  the  federal  courts,  yet  many  attempts  have 

1.  Hoxie  V.  New  York,  N.  H.  &  H.  K.  Co.,  82  Conn.  352,  17  Ann. 
Cas.  324. 

2.  Second  Employers'  Liability  Cases,  223  U.  S.  1,  56  L.  Ed.  327, 
1  N.  C.  C.  A.  875,  38  L.  R.  A.  (N.  S.)  44. 


234        INJUBEES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

been  made  to  remove  such  cases  without,  however, 
any  success.  Courts  have  declared  that  the  right  of 
removal  from  a  state  court  by  a  foreign  citizen  is  a 
right  which  may  be  taken  away  by  Congress  or 
given  to  a  litigant.  A  cause  under  the  federal  act 
filed  since  the  amendment  of  1910  is  not  removable 
because  of  diversity  of  citizenship  or  any  other 
ground.^ 

§  127.  Removability  When  Petition  States  Cause 
of  Action  Under  State  Law  in  One  Count  and  Under 
Federal  Law  in  Another  Count. — A  question  of  some 
difficulty  has  presented  itself  to  the  courts  in  deter- 
mining whether  a  cause  is  removable  in  which  the 
plaintiff  has  plead  a  cause  of  action  under  the  state 
law  in  one  count  and  under  the  federal  act  in  an- 
other, the  other  jurisdictional  grounds,  such  as  di- 
versity of  citizenship,  being  present  in  the  case.  It 
was  held  by  a  federal  district  court  in  New  York 
that  although  the  facts  pleaded  in  the  petition 
showed  a  cause  of  action  under  the  federal  act  and 
also  under  the  state  law,  it  was,  nevertheless,  a  case 
arising  under  the  Federal  Employers'  Liability  Act 
and  was  not  removable  from  the  state  courts  not- 
withstanding the  existence  of  diversity  of  citizen- 

3.  Pankey  v,  Atchison,  T.  &  S.  F.  Ry.  Co.,  180  Mo.  App.  185, 
6  N.  C.  C.  A.  74;  McChesney  v.  lUinois  C.  R.  Co.,  197  Fed.  85; 
DeAtley  v,  Chesapeake  &  O.  Ry.  Co.,  201  Fed.  591;  Elansas  City  S. 
Ey.  Co.  V.  Cook,  100  Ark.  467;  St.  Louis  &  S.  F.  R.  Co.  v.  Conarty, 
106  Ark.  421,  6  N.  C.  C.  A.  202n,  447n;  Teel  v.  Chesapeake  &  O.  Ry. 
Co.,  123  C.  C.  A.  240,  204  Fed.  918,  6  N.  C.  C.  A.  79n,  47  L.  B.  A. 
(N.  S.)  21n;  Patton  v.  Cincinnati,  N.  O.  &  T.  P.  Ry.,  208  Fed.  29; 
Eng  V.  Southern  P.  Co.,  210  Fed.  92,  6  N.  C.  C.  A.  78,  79n,  200n; 
Missouri,  K.  &  T.  R.  Co.  v.  Bunkley,  —  Tex.  Civ.  App.  — ,  5  N.  C. 
C.  A.  583n,  153  S.  W.  937 ;  Kelly  v.  Chesapeake  &  O.  R.  Co.,  201  Fed. 
602;  Hulac  v.  Chicago  &  N.  W.  E,  Co.,  194  Fed.  747. 


JURISDICTION    OF    COURTS  235 

ship.*  In  another  case  before  the  same  court  it  was 
held  that  since  such  a  petition  stated  but  one  cause 
of  action  under  the  decision  of  the  state  courts,  the 
cause  was  not  removable.^  The  court,  however,  said : 
' '  In  short,  by  pleading  facts  bringing  the  case  within 
the  federal  act,  and  facts  bringing  the  case  within 
the  common-law  liability,  and  facts  bringing  it 
within  the  state  statute  liability,  not  necessary  to 
be  alleged  or  proved  to  make  a  case  under  the  fed- 
eral act  (and  the  facts  alleged  bringing*  it  within 
the  federal  act  not  being  necessary  to  the  cause  of 
action  under  the  common  law  or  state  statute),  in 
the  state  court,  the  plaintiff  may  succeed  on  either 
one  of  three  theories;  that  is,  he  may  abandon  all 
pretense  that  the  case  is  within  the  federal  act  and 
yet  succeed.  By  artful  pleading  he  defeats  removal. 
This  question  of  removal  has  been  up  in  the  follow- 
ing cases:  Van  Brimmer  v.  Texas  &  P.  R.  Co.  (C.  C), 
190  Fed.  394  (6  N.  C.  C.  A.  79n) ;  Symonds  v.  St. 
Louis  &  S.  E.  R.  Co.  (C.  C),  192  Fed.  353;  Lee  v. 
Toledo,  St.  L.  &  W.  R.  Co.  (D.  C),  193  Fed.  685; 
Hulac  V.  Chicago  &  N.  W.  R.  Co.  (D.  C),  194  Fed. 
747;  McChesney  v.  111.  Cent.  R.  Co.  (D.  C),  197  Fed. 
85;  Ullrich  v.  New  York,  N.  H.  &  H.  R.  Co.  (D.  C), 
193  Fed.  768.  The  Ullrich  case  is  nearest  in  point 
here,  and  assumes  that  three  causes  of  action  are 
pleaded,  which  under  the  New  York  Code  seems  not 
to  be  the  case.  See  later.  If,  on  the  trial  in  the  state 
court,  the  plaintiff  shall  abandon  the  theory  that 
the  case  arose  under  the  federal  act,  or  shall  fail  to 

4.  UUrich  V.  New  York,  N.  H.  &  H.  E.  Co.,  193  Fed.  768. 

5.  Eice  V.  Boston  &  M.  E.  Co.,  203  Fed.  580. 


236        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

show  a  case  within  that  act,  and  that  court  has  power 
at  once  to  send  the  case  back  to  the  federal  court, 
the  rights  of  the  defendant  to  removal  will  be  pro- 
tected and  preserved." 

§  128.  Action  Removable  When  Petition  Does  Not 
State  Cause  of  Action  Under  Federal  Act  Although 
Intended  to  Be  Under  That  Statute. — An  action  by 
an  employe  against  a  railroad  company,  incorpo- 
rated under  the  laws  of  another  state,  where  the 
other  juri-sdictional  facts  appear,  is  removable  to 
the  proper  United  States  district  courts  when  the 
petition  fails  to  state  a  cause  of  action  under  the 
Federal  Employers'  Liability  Act  although  the 
plaintiff  may  have  intended  to  bring  his  suit  under 
that  act.*'  In  the  Thomas  case  cited,  the  plaintiff, 
a  resident  of  Iowa,  brought  an  action  in  the  Iowa 
courts  against  an  Illinois  railroad  company  engaged 
in  interstate  commerce.  The  petition  was  in  two 
counts,  one  stating  a  cause  of  action  under  the  laws 
of  the  state  and  the  other  attempting  to  state  a  cause 
of  action  under  the  Federal  Employers'  Liability 
Act.  It  was  alleged  in  the  last  count  that  the  car- 
rier was  engaged  in  interstate  commerce  and  that 
the  deceased  employe  was  employed  by  it  in  such 
commerce  at  the  time  of  his  death.  There  was,  how- 
ever, no  allegation  that  the  decedent  left  surviving 
him  a  widow,  child,  parent  or  next  of  kin  for  whose 
benefit  a  right  of  action  survives  under  the  Federal 
Employers '  Liability  Act.  The  court  held  that  since 
the  petition  therefore  did  not  state  a  cause  of  action 

6.  Thomas  v.  Chicago  &  N.  W.  Ey.  Co.,  202  Fed.  767,  6  N.  C.  C.  A. 
439n,  446n. 


JURISDICTION   OF   COURTS  237 

Tinder  the  federal  act  and  since  the  suit  was  against 
a  non-resident  and  for  a  greater  sum  than  $3,000,  the 
cause  was  removable  to  the  federal  court.  Judge 
Reed,  in  overruling  the  motion  to  remand,  said:  ''It 
may  be  that  it  was  intended  to  allege  in  this  count  of 
the  petition  a  cause  of  action  arising  under  the  Fed- 
eral Employers '  Liability  Act.  If  so,  essential  facts 
are  wholly  wanting  to  show  such  a  cause  of  action; 
the  averment  alone  that  'the  carrier  and  its  employe 
were  engaged  in  interstate  commerce  at  the  time  of 
the  injury  to  and  death  of  the  employe'  being  insuf- 
ficient to  show  such  a  right.  If  it  appeared  upon 
the  face  of  the  petition  that  sufficient  facts  existed  to 
show  a  right  of  action  under  the  federal  act,  but 
were  inaptly  or  defectively  alleged,  such  defects 
could  be  cured  by  an  amendment,  and  they  might  be 
overlooked.  But,  when  essential  facts  are  wholly 
wanting,  effect  must  be  given  to  the  petition  as  it  is 
written. ' ' 

§  129.  Statute  of  Limitation. — It  is  provided  in  §  6 
of  the  act  that  "no  action  shall  be  maintained  under 
this  act  unless  commenced  within  two  years  from 
the  day  the  cause  of  action  accrued."  This  statute 
of  limitation  applies  to  all  actions  against  railroad 
companies  brought  by  employes  for  injuries  received 
while  employed  in  interstate  commerce  and  while 
the  carrier  was  so  engaged.^  The  Supreme  Court  of 
North  Carolina  has  held  that  the  defendant  in  an 
action  under  the  federal  act,  in  order  to  avail  itself 

7.  Shannon  v,  Boston  &  M.  E.  Co.,  —  N.  H.  — ,  92  AtL  167. 


238        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

of  the  benefit  of  the  statute  of  limitation  under  that 
act  must  plead  it.^ 

§  130.  Judgment  of  Highest  State  Court  in  Action 
Under  Federal  Act  May  Be  Reviewed  by  United 
States  Supreme  Court,  When. — In  an  action  brought 
under  the  Federal  Employers'  Liability  Act  in  the 
state  court  where  there  is  a  final  judgment  in  the 
highest  court  of  the  state  in  which  a  decision  in  the 
cause  could  be  had,  the  Supreme  Court  of  the  United 
States  has  appellate  jurisdiction  on  a  writ  of  error 
issued  by  it  to  the  court  of  last  resort  in  the  state 
where  the  validity  of  the  statute  is  drawn  in  ques- 
tion and  the  decision  is  against  its  validity;  or  where 
the  statute  is  declared  valid  by  the  state  court  but  is 
claimed  by  one  of  the  parties  to  the  litigation  to  be 
contrary  or  repugnant  to  the  Constitution  of  the 
United  States;  or  where  the  decision  of  the  state 
court  is  against  any  title,  right,  privilege  or  inmiu- 
nity  specially  set  up  or  claimed  by  either  party  to  the 
action  under  the  Constitution  of  the  United  States 
or  some  act  of  Congress.  Such  questions  may  be 
reexamined  by  the  Supreme  Court  of  the  United 
States  on  writ  of  error  and  the  writ  has  the  same 
effect  as  if  the  judgment  complained  of  had  been 
rendered  by  a  court  of  the  United  States.  The  Su- 
preme Court  may  reverse,  modify  or  affirm  the  judg- 
ment or  decree  of  the  state  court  and  may,  at  its  dis- 
cretion, award  execution  or  remand  the  same  to  the 
court  from  which  it  was  removed  by  the  writ.^ 

8.  Burnett  v.  Atlantic  C.  L.  E.  Co.,  163  N.  C.  186,  6  N.  C.  C.  A.  103, 
104n. 

9.  Section  237  of  the  Judicial  Code  (Act  of  ilarcli  3,  1911,  c.  231, 
36  Stat.  1087,  1156).    This  code  merely  re-euacted  §  709  B.  S.  tJ.  S., 


JURISDICTION   OF    COURTS  239 

§  131.  Record  Must  Show  Right  Under  Federal 
Laws  Was  Specially  Set  Up  and  Denied  by  State 
Court. — In  order  to  sustain  a  writ  of  error  from  the 
Supreme  Court  of  the  United  States  to  the  highest 
court  of  a  state  in  any  action  under  the  Federal  Em- 
ployers' Liability  Act,  it  must  appear,  in  order  to 
give  the  United  States  Supreme  Court  jurisdiction, 
that  a  right  under  the  Constitution  or  laws  of  the 
United  States  was  specially  set  up  by  the  plaintiff 
in  error  in  the  state  court  and  denied  by  the  highest 
court  of  the  state.  It  must  also  appear  from  the 
record  that  there  was  necessarily  presented  in  the 
state  court  a  definite  issue  as  to  the  correct  construc- 
tion of  the  Federal  Employers'  Liability  Act  so  di- 
rectly involved  that  the  state  court  could  not  have 
given  the  judgment  it  did  without  deciding  the  ques- 
tion against  the  contention  of  the  plaintiff  in  error.  ^"^ 

§  132.  Contention  That  There  Is  or  Is  Not  Suf- 
ficient Evidence  to  Show  Liability,  Will  Support 
Writ  of  Error. — If  at  the  close  of  the  evidence  in  an 

4  Fed.  Stat.  Ann.  p.  467;  Seaboard  A.  L.  Ey.  v.  Duvall,  225  U.  S. 
477,  56  L.  Ed.  1171;  El  Paso  &  N.  E.  E.  Co.  v.  Gutierrez,  215  U,  S. 
87,  54  L.  Ed.  106 ;  Gaar,  S.  &  Co.  v.  Shannon,  223  U.  S.  468,  56  L.  Ed. 
510;  St.  Louis,  I.  M.  &  S.  E.  Co.  v.  Taylor,  210  U.  S.  281,  52  L.  Ed. 
1061;  TUt  V.  Kelsey,  207  U.  S.  43,  52  L.  Ed.  95;  Kansas  City  S.  E.  Co. 
V.  C.  H.  Albers  Commission  Co.,  223  U.  S.  573,  56  L.  Ed.  556; 
Chambers  v.  Baltimore  &  O.  E.  Co.,  207  U.  S.  142,  52  L.  Ed.  143; 
Illinois  C.  E.  Co.  v.  Kentucky,  218  U.  S.  551,  54  L.  Ed.  1147; 
Cincinnati,  N.  O.  &  T.  P.  E.  Co.  v.  Slade,  216  U.  S.  78,  54  L.  Ed.  390; 
Chesapeake  &  O.  E.  Co.  v.  McDonald,  214  U.  S.  191,  53  L.  Ed.  963; 
Louisville  &  N.  E.  Co.  v.  Melton,  218  U.  S.  36,  54  L.  Ed.  921,  47 
L.  E.  A.   (N.  S.)  84n. 

10.  St.  Louis,  I.  M.  &  S.  E.  Co.  v.  Taylor,  210  U.  S.  281,  52  L.  Ed. 
1061;  Seaboard  A.  L.  Ey.  v.  Duvall,  225  U.  S.  477,  56  L.  Ed.  1171; 
Moliter  v.  Wabash  E.  Co.,  —  Mo.  App.  — ,  168  S.  W.  250,  6  N.  C. 
C.  A.  75n,  8  In,  86n,  233n. 


240        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

action  under  the  Federal  Employers'  Liability  Act, 
defendant  demurs  or  moves  for  directed  verdict 
(the  particular  form  of  such  motion  being  governed 
by  the  local  practice)  the  action  of  the  court  thereon, 
if  duly  excepted  to,  raises  a  federal  question  which 
will  support  a  writ  of  error  from  the  national  Su- 
preme Court  to  the  highest  state  court  to  which  the 
case  may  be  appealed.  If  the  demurrer  is  sustained 
the  plaintiff  may  appeal  and  raise  the  federal  ques- 
tion whether  he  has  produced  evidence  tending  to 
show  existence  of  the  federal  right.  If  the  demurrer 
is  overruled,  the  defendant  may  appeal  and  raise  the 
federal  question  whether  there  is  any  e\ddence  tend- 
ing to  show  that  the  defendant  is  liable  within  the 
terms  of  the  statute. 

The  question  as  to  whether  there  is  any  evidence 
tending  to  prove  every  element  necessary  to  recover 
under  the  act,  is  a  federal  question  if  properly  raised. 
Thus  in  one  case  the  plaintiff  failed  to  prove  that  a 
violation  of  the  national  Hours  of  Service  Act,  on 
which  recoveiy  was  based,  was  the  proximate  cause 
of  employe's  death  and  because  of  such  failure  of 
proof,  the  cause  was  reversed  in  the  national  Su- 
preme Court  after  an  affirmance  in  the  highest  state 
court. ^^  In  the  McWhirter  case  cited,  the  defendant 
raised  the  federal  question  by  requesting  the  court 
to  instruct  the  jury  to  find  in  its  favor.  The  court 
refused  to  do  so  and  the  defendant  excepted.  In 
deciding  that  such  a  question  would  support  a  writ 
of  error  from  the  highest  state  court  to  which  the 

11.  St.  Louis,  I.  M.  &  S.  Ey.  Co.  v.  McWhirter,  229  U.  S.  265,  57 
L.  Ed.  1179,  reversing  same  case  reported  in  145  Ky.  427. 


JURISDICTION   OF   COURTS  241 

case  was  appealable,  to  the  United  States  Supreme 
Court,  Mr.  Justice  White  said:  "While  it  is  true, 
as  we  have  said,  that,  coming  from  a  state  court, 
the  power  to  review  is  controlled  by  Rev.  Stat.,  §  709, 
j^et  where,  in  a  controversy  of  a  purely  federal  char- 
acter, the  claim  is  made  and  denied  that  there  was 
no  evidence  tending  to  show  liability  under  the  fed- 
eral law,  such  ruling,  when  duly  excepted  to,  is  re- 
viewable, because  inherently  involving  the  operation 
and  effect  of  the  federal  law."  ^^ 

§  133.  Power  to  Review  Does  Not  Extend  to  Ques- 
tions Merely  Incidental  and  Non-Federal  in  Char- 
acter.— Under  the  act  of  Congress  heretofore  cited 
giving  the  Supreme  Court  of  the  United  States  the 
power  to  review  judgments  of  the  highest  court  of  a 
state  to  which  a  case  is  appealable,  in  any  action 
under  the  Federal  Employers'  Liability  Act,  the 
power  of  the  United  States  Supreme  Court  does  not 
extend  to  questions  merely  incidental  and  not  fed- 
eral in  their  character,  that  is,  which  do  not  in  their 
essence  involve  the  existence  of  the  right  in  the 
plaintiff  to  recover  under  the  federal  statute  to  which 
his  recourse  by  the  pleadings  was  confined  or  the 
converse,  that  is,  the  right  of  the  defendant  to  be 
shielded  from  responsibility  under  that  statute  be- 
cause, when  properly  applied,  no  liability  on  his 
part  would  result.^^ 

12.  The  court  in  reaching  this  conclusion  cited  the  following  cases: 
Kansas  City  S.  R.  Co.  v.  C.  H.  Albers  Commission  Co.,  223  U.  S.  573, 
591,  56  L.  Ed.  556,  565;  Creswill  v.  Grand  Lodge,  K.  P.,  225  U.  S. 
246,  56  L.  Ed.  1074. 

13.  Wabash  E.  Co.  v.  Hayes,  234  U.  S.  86,  58  L,.  Ed.  1226,  6 
N.  C.  C.  A.  224,  aflSrming  same  case  reported  in  180  111.  Ajip.  511 ;  St. 

Roberts  Liabilities — 16 


242        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

§  134.  Ruling^  of  State  Court  That  Federal  Ques- 
tion Was  Sufficiently  Raised  Binding  Upon  United 
States  Supreme  Court. — To  support  a  writ  of  error 
to  the  United  States  Supreme  Court,  the  federal 
statute  requires  that  the  right,  title,  privilege  or  im- 
munity shall  be  ''especially  set  up  or  claimed"  by 
the  party  appealing.  If  the  highest  supreme  court 
of  a  state  holds  that  a  federal  question  was  suf- 
ficiently raised  and  decided  it,  the  objection  that 
the  claim  or  right  was  not  presented  with  clearness 
enough  to  save  it,  is  not  open  in  the  United  States 
Supreme  Court. ^^  In  the  Hesterly  case  cited,  which 
was  an  action  under  the  Federal  Employers'  Liabil- 
ity Act,  the  administrator  of  a  deceased  employe  was 
seeking  to  recover  damages  for  the  pain  and  suffer- 
ing of  the  deceased,  the  death  having  occurred  prior 
to  the  1910  amendment.  The  defendant  requested 
the  trial  court  for  a  ruling  that  the  plaintiff  could 
not  recover  such  damages  which  request  was  denied 
and  defendant  excepted.  On  appeal  to  the  state  su- 
preme court,  that  court  treated  the  request  as  in- 
tended to  raise  the  question  whether  the  federal  act 
displaced  the  state  law  and  whether  such  damages 
could  be  recovered  under  it.  The  ruling  of  the  lower 
court  was  sustained.  When  the  case  reached  the 
national  Supreme  Court  on  writ  of  error,  the  def  end- 
Louis,  I.  M.  &  S.  Ey.  Co.  V.  McWhirter,  229  U.  S.  265,  57  L.  Ed. 
1179,  reversing  145  Ky,  427;  Seaboard  A.  L.  R.  Co.  v.  Duvall,  225 
U.  S.  447,  56  L.  Ed.  1171;  St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Taylor, 
210  U.  S.  281,  52  L.  Ed.  1061. 

14.  St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Hesterly,  228  U.  S.  702,  57  L. 
Ed.  1031,  reversing  same  case  reported  in  98  Ark.  240;  San  Jose  Land 
&  Water  Co.  v.  San  Jose  Ranch  Co.,  189  U.  S.  177,  180,  47  L.  Ed.  765, 
768;  Eau  Claire  Nat.  Bank  v.  Jackman,  204  U.  S.  522,  51  L.  Ed.  596. 


JURISDICTION   OF   COURTS  243 

ant  in  error  made  the  objection  that  the  claim  or 
right  under  the  laws  of  the  United  States  was  not 
raised  with  sufficient  clearness  to  save  the  point;  but 
the  United  States  Supreme  Court  held  that  since  the 
state  supreme  court  had  held  the  question  sufficiently 
raised  and  passed  upon  it,  such  objection  was  not 
open  in  the  national  Supreme  Court. 

§  135.  Federal  Questions  to  Support  Writ  of  Error 
to  United  States  Supreme  Court,  Need  Not  Be  Raised 
by  the  Pleading's. — The  federal  claim  or  right  which 
will  support  a  writ  of  error  from  the  United  States 
to  the  highest  court  of  a  state,  need  not  be  raised  by 
the  party  appealing  by  the  pleadings.  Where  an 
interstate  railroad  was  sued  in  the  state  court  under 
a  state  statute  for  the  death  of  an  employe  by  bene- 
ficiaries in  their  individual  capacities,  and  the  de- 
fendant, not  by  answer,  but  by  appropriate  special 
exceptions,  asked  that  the  plaintiff  be  required  to 
state  facts  showing  whether  they  were  relying  on 
the  state  or  federal  act,  which  request  was  refused, 
and  again  at  the  conclusion  of  the  testimony,  de- 
fendant requested  the  court  to  direct  the  verdict  in 
its  favor  on  the  ground  that  the  undisputed  evidence 
disclosed  that  the  case  was  one  which  the  federal 
statute  controlled  and  that  if  liable,  it  was  liable  to 
the  personal  representatives  and  not  to  the  plaintiffs, 
which  request  was  denied,  and  the  jury  returned  a 
verdict  for  the  plaintiffs  in  which  the  damages  were 
apportioned  among  the  parents  and  widow  conform- 
able to  state  law,  the  national  Supreme  Court  held 
that  the  federal  question  was  interposed  in  due  time, 
and  that  the  state  courts  erred  in  overruling  it,  thus 


244        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

supporting  a  writ  of  error  from  the  national  Supreme 
Court  to  the  state  supreme  court.  ^^  It  will  be  noticed 
that  the  federal  right  was  not  set  up  in  the  answer 
nor  did  the  petition  present  any  issue  for  the  con- 
struction of  the  act,  but  the  court  held  that  in  view 
of  the  fact  that  the  plaintiffs'  evidence  showed  con- 
clusively that  the  deceased  was  engaged  in  interstate 
commerce,  it  was  sufficiently  raised  by  a  demurrer, 
especially  since  the  court  overruled  the  motion  to 
make  the  petition  state  the  facts  as  to  employment 
in  either  kind  of  commerce. 

§  136.  Pleading  Federal  Act  and  Submitting  Case 
to  Jury  Under  State  Law,  No  Denial  of  Federal 
Right. — In  an  action  under  the  federal  act  where  a 
petition  stated  a  good  cause  of  action  under  that  law 
and  eliminating  the  allegations  as  to  interstate  em- 
ployment, stated  a  good  cause  of  action  under  the  law 
of  the  state,  and  the  defendant  upon  the  conclusion 
of  all  the  evidence  requested  the  court  to  instruct  the 
jury  that  the  case  could  not  be  maintained  under 
the  federal  act  and  the  lower  court  sustained  its  con- 
tention and  submitted  the  cause  under  the  state  law, 
no  right  under  the  federal  law  by  the  action  of  the 
state  court  was  denied  the  defendant  and  hence  a 
writ  of  error  to  the  United  States  Supreme  Court 
could  not  be  maintained.  ^*^ 

15.  Seale  v.  St.  Louis,  S.  F.  &  T.  R.  Co.,  229  U.  S.  156,  57  L.  Ed. 
1129,  Ann.  Cas.  1914  C  156n,  reversing  the  same  case  reported  in 
—  Tex.  Civ.  App.  — ,  148  S.  W.  1099;  Moliter  v.  Wabash  R.  Co., 
180  Mo.  App.  84,  6  N.  C.  C.  A.  75n,  78n,  81n,  86n,  233n. 

16.  Wabash  R.  Co.  v.  Hayes,  234  U.  S.  86,  58  L.  Ed.  1226,  6  N.  C. 
C.  A.  224,  affirming  same  case  reported  in  180  111.  App.  511. 


JURISDICTION    OF    COURTS  245 

§  137.  When  Petition  Not  Stating  a  Good  Cause 
of  Action  Under  Federal  Act  Raises  a  Federal  Ques- 
tion.— In  an  action  by  the  administrator  of  a  de- 
ceased railroad  employe  against  a  railroad  company 
it  was  neither  pleaded  nor  proven  that  the  deceased 
left  a  widow,  child,  parent  or  dependent  next  of  kin 
surviving  him  which  is  jurisdictional  to  a  recovery 
under  the  federal  act.  Defendant  in  its  answer  set 
up  that  it  was  engaged  in  interstate  commerce  and 
that  the  deceased  servant  was  employed  by  it  in 
such  commerce  at  the  time  of  his  death.  The  trial 
court  overruled  the  contention  of  the  defendant  that 
the  federal  law  applied  and  submitted  the  cause 
under  the  state  law.  The  Supreme  Court  of  the 
United  States  held  that  such  a  question  was  sufficient 
to  support  a  writ  of  error  for  the  reasoji  that  under 
the  state  law  this  limitation  upon  the  recovery  by 
an  administrator  was  not  recognized.^^ 

138.  Claim  That  Verdict  Is  Excessive  Not  Re- 
viewable by  Writ  of  Error. — A  contention  that  a 
verdict  in  an  action  under  the  federal  act  is  excessive 
does  not  present  a  questign  for  reexamination  upon 
a  writ  of  error  in  the  Supreme  Court  of  the  United 
States.  Such  questions  are  matters  to  be  dealt  with 
by  the  state  courts. ^^ 

17.  North  Carolina  K.  Co.  v.  Zachary,  232  U.  S.  248,  58  L,  Ed.  591, 
6  N.  C,  C.  A.  194n,  Ann.  Cas.  1914  C  159n. 

18.  Southern  Ry.  Co.  v.  Bennett,  233  U.  S.  80,  58  L.  Ed.  860. 


CHAPTER  X 

PAKTIES,  PLAINTIFFS  AND  DEFENDANTS, 
IN  SUITS  UNDER  FEDERAL  ACT 

§  139  Personal  Eepresentative  Only  Can  Bring  Suit  in  Case  of 
Death. 

§  140.  Widow  Cannot  Maintain  Suit  in  Individual  Capacity  Although 
She  May  Be  Sole  Beneficiary. 

§  141.  Want  of  Legal  Capacity  in  Widow  to  Sue  Cannot  Be  Waived. 

§  142.  Ancillary  Administrator  May  Sue  Under  the  Federal  Act. 

§  143.  Personal  Eepresentative  Alone  May  Eevive  Suit  Commenced  by 
Employe  in  His  Lifetime. 

§  144.  Existence  of  Other  Property  Not  Necessary  to  Secure  Appoint- 
ment of  Personal  Eepresentative. 

§  145.  Agents  and  Servants  Whose  Negligence  Caused  Injury,  Not 
Liable  Under  the  Federal  Act. 

§  146.  Lessor  of  a  EaUroad  May  Be  ]Made  Party  Defendant. 

§  147.  Personal  Eepresentative  Appointed  in  One  State  Cannot  Sue  in 
Another  State  Without  Consent. 

§  139.  Personal  Representative  Only  Can  Bring 
Suit  in  Case  of  Death. — The  federal  statute  provides 
in  the  first  section  that  the  carrier  shall  be  liable  in 
damages  to  any  employe  suffering  injury  under  the 
condition  named  in  the  act,  or,  ' '  in  case  of  the  death 
of  such  employe,  to  his  or  her  personal  representa- 
tive, for  the  benefit  of  the  surviving  widow  or  hus- 
band and  children  of  such  employe ;  and,  if  none,  then 
of  such  employe 's  parents ;  and,  if  none,  then  of  the 
next  of  kin  dependent  upon  such  employe."  The 
amendment  of  1910  also  provides  that  ' '  any  right  of 
action  given  by  this  act  to  a  person  suffering  injury, 
shall  survive  to  his  or  her  personal  representative, 

246 


PARTIES   TO   ACTIONS    UNDER   ACT  247 

for  the  benefit  of  the  surviving  widow  or  husband 
and  children  of  such  employe,  and,  if  none,  then  of 
such  employe's  parents;  and,  if  none,  then  of  the 
next  of  kin  dependent  upon  such  employe,  but  in 
such  cases  there  shall  be  only  one  recovery  for  the 
same  injury."  In  cases  of  death,  therefore,  it  has 
been  repeatedly  held  by  the  courts  that  suit  under 
the  federal  act  can  only  be  brought  by  the  personal 
representative  of  the  deceased,  that  is,  the  adminis- 
trator or  the  executor  as  the  case  may  be.^ 

§  140.  Widow  Cannot  Maintain  Suit  in  Individual 
Capacity  Although  She  May  Be  Sole  Beneficiary. — If 
at  the  time  of  the  accident,  the  railroad  company  was 
engaged  in  interstate  commerce  and  the  servant  was 
employed  by  it  in  such  commerce,  the  remedy  given 
by  the  federal  act  is  exclusive  and  the  widow  cannot 
sustain  a  suit  in  her  individual  capacity,  although 
she  is  the  sole  beneficiary  and  although  the  laws  of 
the  state  where  the  accident  occurred,  provide  that 
the.  widow  is  the  proper  party  to  bring  suit  for  the 
death  of  an  employe.^    Prior  to  the  decisions  of  the 

1.  American  E.  Co.  v.  Didricksen,  227  U.  S.  147,  57  L,  Ed.  456; 
3  N.  C.  C.  A.  809n,  831n;  Missouri,  K.  &  T.  Ry.  Co.  v.  Wulf,  226 
U.  S.  570,  57  L.  Ed.  355,  6  N.  C.  C.  A.  230n,  237n,  Ann.  Cas.  1914  B 
134n;  American  E.  Co.  v.  Birch,  224  U.  S.  547,  56  L.  Ed.  879;  St. 
Louis,  S.  F.  &  T.  Ey.  Co.  v.  Seale,  229  U.  S.  156,  57  L.  Ed.  1129,  3 
N.  C.  C.  A.  800,  Ann.  Cas.  1914  C  156n;  St.  Louis,  I.  M.  &  S.  Ey.  Co. 
V.  Hesterly,  228  U.  S.  702,  57  L.  Ed.  1031;  Eich  v.  St.  Louis  &  S.  F. 
E.  Co.,  166  Mo.  App.  379;  Gulf,  etc.,  E.  Co.  v.  Lester,  —  Tex.  Civ. 
App.  — ,  149  S.  W,  841;  Dewberry  v.  Southern  E.  Co.,  175  Fed.  307; 
Hearst  v.  St.  Louis,  I.  M.  &  S.  Ey.  Co.,  —  Mo.  App.  — ,  173  S.  W.  86. 

2.  American  E.  Co.  v.  Birch,  224  U.  S.  547,  56  L.  Ed.  879;  Eastern 
Ey.  Co.  of  New  Mexico  v.  Ellis,  —  Tex.  Civ.  App.  — ,  153  S.  W.  701 ; 
Dewberry  v.  Southern  E.  Co.,  175  Fed.  307;  Eich  v.  St.  Louis  &  S.  F. 
E.  Co.,  166  Mo.  App.  379;  St.  Louis  S.  W.  Ey.  Co.  v.  Brothers,  —  Tex. 


248        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

Supreme  Court  of  the  United  States  cited,  a  few 
courts  had  decided  that  a  widow,  under  such  circum- 
stances, was  not  limited  to  sue  under  the  Federal 
Employers'  Liability  Act,  but  was  also  entitled  to 
sue  under  the  state  law.^  These  decisions  are  now 
in  conflict  with  the  controlling  rulings  of  the  national 
Supreme  Court. 

§  141.  Want  of  Legal  Capacity  in  Widow  to  Sue 
Cannot  Be  Waived. — The  want  of  legal  capacity  in 
a  widow  to  sue  as  an  individual  under  the  federal 
statute,  goes  to  the  substance  of  the  action  and  can- 
not be  waived.^  Where  a  widow,  suing  individually 
as  plaintiff  in  a  Missouri  court,  and  alleging  a  cause 
of  action  under  the  laws  of  the  state  of  Kansas,  ob- 
tained a  judgment  upon  proof  showing  that  her 
husband  was  killed  while  assisting  in  the  movement 
of  an  interstate  train,  she  could  not  thereafter  as  ad- 
ministratrix, enter  her  appearance  and  adopt  the 
judgment.^  In  the  Vaughan  case,  cited  in  the  notes, 
it  was  argued  on  behalf  of  the  widow  that  the  federal 
statute  did  not  control  procedure  in  the  state  courts 
and  that  as  the  defendant  did  not  demur  or  raise  the 
objection  by  answer,  it  waived  the  lack  of  capacity 
in  plaintiff  to  sue.     But  Judge  Trimble,  speaking 

Civ.  App.  — ,  165  S.  W.  488 ;  Vaughan  v.  St.  Louis  &  S.  F.  E,  Co.,  177 
Mo.  App.  155,  6  N.  C.  C.  A.  75ii,  438n,  439n;  Cincinnati,  N.  O.  &  T.  P. 
Ey.  Co.  V.  Bonham,  —  Tenn.  — ,  171  S.  W.  71. 

3.  An  illustrative  case  is  Troxell  v.  Delaware,  L.  &  W.  K.  Co.,  180 
Fed.  871.  This  case  was  reversed  when  it  reached  the  Circuit  Court 
of  Appeals,  183  Fed.  373. 

4.  Missouri,  K.  &  T.  Ey.  Co.  v.  Lenahan,  39  Okla.  283,  6  N.  C.  C.  A. 
75n,  78n,  437n. 

5.  Vaughan  v.  St.  Louis  &  S.  F.  E.  Co.,  177  Mo.  App.  155,  6  N.  C. 
C.  A.  75n,  438,  439n;  Dungan  v.  St.  Louis  &  S,  F.  E.  Co.,  178  Mo. 
App.  164,  6  N.  C.  C.  A.  438,  439n. 


PARTIES   TO   ACTIONS   UNDER   ACT  249 

for  the  court,  in  answering  this  contention,  said: 
"The  trouble  with  this  contention  is  that  since  the 
federal  act  displaces  the  Kansas  statute  it  has  taken 
out  of  the  widow  the  right  to  recover  and  placed  it 
in  the  personal  representative,  and  when  defendant 
by  its  demurrer  to  the  evidence  objected  to  any  judg- 
ment, there  was  no  law  in  force  authorizing  the  court 
to  render  judgment  in  her  favor.    The  court  had  no 
authority,  outside  of  the  federal  law,  to  render  any 
judgment.    Hence  it  had  no  authority  to  render  the 
judgment  it  gave,  and,  as  defendant  objected  thereto, 
by  demurring  to  the  evidence,  the  validity  thereof 
was  not  waived.     (See  on  this  point  Barker  v.  Han- 
nibal &  St.  J.  R.  Co.,  91  Mo.  86;  Hegberg  v.  St.  Louis 
&  S.  F.  E.  Co.,  164  Mo.  App.  514;  Poor  v.  Watson, 
92  Mo.  App.  89.)    Again,  while  the  federal  act  does 
not  attempt  to  control  state  procedure,  yet  it  does 
not  leave  state  procedure  so  free  and  untrammeled 
as  to  allow  such  procedure  to  work  a  change  in  the 
terms  of  the  statute.    So  that  as  defendant  objected 
to  the  judgment  before  it  was  rendered  the  pro- 
visions of  the  federal  law  were  not  waived. ' '    Other 
courts  have  held  that  if  the  pleading  states  facts 
showing  that  the  remedy  given  by  the  federal  act 
applies,  or  the  evidence  discloses  that  the  decedent 
was  killed  while  employed  in  interstate  commerce, 
the  want  of  the  widow's  legal  capacity  to  sue  may 
be  raised  for  the  first  time  in  the  appellate  court.^ 

6.  Cincinnati,  N.  O.  &  T.  P.  Ky.  Co.  v.  Bonham,  —  Tenn.  — ,  171 
S.  W.  71;  La  Casse  v.  New  Orleans,  T.  &  M.  R.  Co.,  —  La.  — ,  6  N.  C. 
C.  A.  196n,  437n,  64  So.  1012;  Southern  Ey,  Co.  v.  Howerton, 
—  Ind.  — ,  101  N.  E.  121;  St.  Louis,  I.  M.  &  S.  E.  Co.  v.  Hesterly, 


250        INJUEIES  TO  INTERSTATE  EMPLOYES  ON  RAELiROADS 

§142.  Ancillary  Administrator  May  Sue  Under 
the  Federal  Act. — A  deceased  brakeman  at  the  time 
of  his  death,  was  in  the  employ  of  a  railroad  com- 
pany rmming  between  a  point  in  Tennessee  and  an- 
other point  in  Kentucky.    He  lived  in  Kentucky  and 
the  railroad  company  was  a  corporation  of  Ken- 
tucky.   He  was  killed  in  Tennessee.    His  widow  was 
appointed  administratrix  of  his  estate  by  the  proper 
court  of  the  county  in  which  he  lived  in  Kentucky. 
Afterwards,  upon  proof  that  he  had  some  property, 
an  administrator  was  appointed  in  the  county  in 
Tennessee  in  which  he  was  killed.     Anderson,  the 
Tennessee  administrator,  brought  suit  under  the  fed- 
eral act  against  the  railroad  company  in  the  state 
courts  of  Tennessee  which,  prior  to  the  1910  amend- 
ment as  to  removal,  was  removed  to  the  District 
Court  of  the  United  States  including  that  county. 
The  pleading  of  the  defendant  set  out  these  facts  and 
the  lower  federal  court  dismissed  the  suit  on  the 
ground  that  the  cause  of  action  vested  solely  in  the 
administratrix  appointed  in  Kentucky.    In  the  Cir- 
cuit Court  of  Appeals  the  sole  question  before  the 
court  was  whether,  notwithstanding  the  previous 
appointment  of  the  Kentucky  administratrix,   the 
Tennessee  administrator,  could,  for  the  purposes  of 
the  suit,  be  rightfully  treated  as  the  decedent's  "per- 
sonal representative"  within  the  meaning  of  the 
Federal  Employers'  Liability  Act.     The  court  held 
that  the  federal  statute  did  not  vest  the  right  of 
action  solely  in  the  administrator  appointed  in  the 

228  U.  S.  702,  57  L.  Ed.  1031,  reversing  same  case  reported  in  98 
Ark.  240 ;  Penny  v.  New  Ordeaus,  G.  N.  E.  Co.,  —  La.  — ,  66  So.  313. 


PARTIES   TO   ACTIONS   UNDER   ACT  251 

state  of  the  deceased  employe's  domicile,  but  that 
the  action  might  be  maintained  by  an  ancillary  ad- 
ministrator appointed  in  another  state  in  view  of 
the  remedial  character  of  the  statute  and  the  repre- 
sentative character  of  the  suit  authorized,  especially 
where  the  ancillary  administrator  is  appointed  in 
the  state  where  the  death  occurred,  and  the  suit  is 
brought  and  prosecuted  with  the  approval  of  the 
domiciliary  administratrix  who  is  also  the  principal 
beneficiary,^ 

§  143.  Personal  Representative  Alone  May  Revive 
Suit  Commenced  by  Employe  in  His  Lifetime. — 
Prior  to  the  amendment  of  1910,  it  had  been  held  by 
the  courts  that  the  cause  of  action  given  an  employe 
by  the  federal  statute  did  not  survive  his  death,  but 
was  extinguished  by  his  death.^  These  decisions 
led  Congress  to  pass  the  amendment  providing  for 
the  surA^ival  of  the  cause  of  action.  Notwithstand- 
ing, the  amendment  provides  that  the  damages  shall 
go  to  the  same  beneficiaries  mentioned  in  the  first 
section  of  the  act  the  personal  representative  is  the 
only  proper  party  plaintiff  to  revive  and  prosecute 
the  suit  in  the  event  of  the  death  of  the  employe 
after  bringing  a  suit  for  his  own  injuries.^ 

§  144.  Existence  of  Other  Property  Not  Necessary 
to  Secure  Appointment  of  Personal  Representative. 
— ^Although  an  employe  of  a  common  carrier  by  rail- 

7.  Anderson  v.  Louisville  &  N.  E.  Co.,  127  C.  C.  A.  277,  210  Fed. 
689,  6  N.  C.  C.  A.  439n. 

8.  Walsh  V.  New  York,  N.  H.  &  H.  E.  Co.,  173  Fed.  494;  Folgham 
V.  Midland  V.  E.  Co.,  167  Fed.  660. 

9.  St.  Louis  S.  W.  E.  Co.  v.  Brothers,  —  Tex.  Civ.  App.  — ,  165 
S.  W.  488. 


252        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

road,  killed  under  circumstances  rendering  the  fed- 
eral act  exclusively  applicable,  left  no  other  prop- 
erty except  the  right  of  action  for  the  beneficiaries 
under  the  national  statute,  letters  of  administration 
on  his  estate  may  nevertheless  be  issued.^" 

§  145.  Agents  ajid  Servants  Whose  Negligence 
Caused  Injury,  Nat  Liable  Under  the  Federal  Act. — 
The  agents  or  servants  whose  negligence  cause  an 
injury  to  another  employe  employed  by  the  carrier 
at  the  time  of  the  injury,  in  interstate  commerce,  are 
not  liable  under  the  federal  statute.  In  one  case  the 
administrator  of  an  engineer's  estate  brought  suit 
against  a  railroad  company  and  alleged  facts  which 
showed  that  the  federal  act  was  applicable.  A  mas- 
ter mechanic,  whose  negligence  was  claimed  to  have 
caused  the  injury,  was  joined  as  defendant.  The 
court  held  that  the  master  mechanic  was  not  liable 
under  the  Federal  Employers'  Liability  Act,  for  the 
law  is  limited  to  common  carriers  engaged  in  inter- 
state commerce  and  the  master  mechanic  was  not  a 
common  carrier  engaged  in  interstate  commerce.  It 
was  held  however  that  if  his  negligence  caused  the 
injury,  he  would  be  liable  under  the  state  laws  to 
the  proper  party  suing  under  that  law.^^ 

§  146.  Lessor  of  a  Railroad  May  Be  Made  Party 
Defendant. — When  a  railroad  company  leases  its 
line  to  another  company  and  the  laws  of  the  state 
provide  that  the  lessor  shall  be  liable  for  the  acts  of 
the  lessee,  the  lessor  may  be  sued  for  an  injury  oc- 

10.  Gulf,  C.  &  S.  F.  Ey.  Co.  v.  Biezley,  —  Tex.  Civ.  App.  — ,  153  S. 
W.  651 ;  Eastern  Ey.  Co.  of  New  Mexico  v.  Ellis,  —  Tex.  Civ.  App,  — , 
153  S.  W.  701. 

11.  Kelly  V.  Chesapeake  &  O.  E.  Co.,  201  Fed.  602, 


PARTIES   TO   ACTIONS   UNDER   ACT  253 

curring  in  that  state  under  conditions  described  in 
the  federal  act  although  the  injured  servant  was  in 
the  employ  of  the  lessee. ^^  But  the  Supreme  Court 
of  Illinois  held  that  the  owner  of  the  track  was  not 
liable  under  the  federal  act  to  an  employe  of  a 
licensee  on  the  same  track,  the  licensee  and  its  em- 
ploye being  at  the  time  engaged  in  interstate  com- 
merce.^^ 

§  147.  Personal  Representative  Appointed  in  One 
State  Cannot  Sue  in  Another  State  Without  Con- 
sent.— The  personal  representative  of  a  deceased 
railroad  employe  killed  while  working  for  a  railroad 
company  in  interstate  commerce  and  while  the  com- 
pany was  so  engaged,  cannot  prosecute  an  action  for 
his  death  in  any  state  besides  the  one  in  which  he 
was  appointed,  unless  he  is  authorized  to  do  so  by  a 
statute  of  the  state  where  he  proposes  to  bring  the 
action.  ^^ 

12.  North  Carolina  E.  Co.  v.  Zachary,  232  TJ.  S.  248,  58  L.  Ed.  591, 
6  N.  C.  C.  A.  194n,  Ann.  Cas.  1914  C  159ii. 

13.  Wagner  v.  Chicago  &  A.  E.  Co.,  —  111.  — ,  106  N.  E.  809. 

14.  Baltimore  &  O.  E.  Co.  v.  Evans,  110  C.  C.  A.  156,  188  Fed. 
6;  Midland  V.  E,  Co.  v.  LeMoyne,  —  Ark.  — ,  4  N.  C.  C.  A.  493n, 
148  S.  W.  654;  Hall  v.  Southern  E.  Co.,  146  N.  C.  345. 


CHAPTER  XI 

PLEADINGS  UNDER  THE  FEDERAL  ACT 

§  148.  Plaintiff 's   Petition  Must  Plead  Facts   Showing   That   Injury 

or  Death  Occurred  Under  Conditions  Described  in  the  Act. 
§  149.  If  petition  States  Cause  of  Action  Solely  Under  Federal  Law, 

There  Can  Be  No  Eecovery  Under  State  Law — Conflicting 

Kulings. 
§  150.  Petition  Stating  a  Cause  of  Action  Under  State  Law,  Eecovery 

Permitted  Under  Federal  Act  When  Omitted  Allegations  Are 

Supplied  by  the  Answer. 
§  151.  Eecovery  Under  Petition  Stating  Cause  of  Action  Under  State 

Law    Though   Evidence   Shows  a   Case   Under   Federal  Act, 

Harmless  Error  on  Appeal,  When. 
§  152.  Pleading  Cause  of  Action  Under  State  Law  in  One  Count  and 

Under  Federal  Act  in  Another  Count,  Allowed. 
§  153.  Petition  Need  Not  Specifically  Eefer  to  the  Act  if  Facts  Show- 
ing Liability  Thereunder  Are  Pleaded. 
§  154.  State  Law  as  to  Sufficiency  of  Pleading  Governs. 
§  155.  Allegations  as  to  Engagement  in  Interstate  Commerce  Held 

SufiScient. 
§  156.  Allegation  to  Show  Cause  of  Action  Under  the  Federal  Act 

Held  Not  Sufficient. 
§  157.  In  Cases  of  Death  Petition   Must  Allege  Survival   of  Bene- 
ficiaries Named  in  Statute. 
§  158.  Petition  Must  Allege  Pecuniary  Loss  to  Beneficiaries. 
§  159.  In  Suits  Under  State  Laws,  Applicability  of  Federal  Act  May 

Be  Eaised  by  Answer. 
§  160.  Where  Petition  Is  Under  State  Law  and  Evidence  Shows  Case 

Under  Federal  Statute,  Plaintiff  Cannot  Eecover. 
§  161.  Defendant  in  Suit  Under  State  Law  Must  Specifically  Plead 

Federal  Act  to  Defeat  Eecovery. 
§  162.  When    Amendment    of    Petition    Permissible    After    Two-year 

Period  of  Limitation. 
§  163.  When  Amendments  After  Limitation  Period  Not  Allowed. 

§  148.  Plaintiff's  Petition  Must  Plead  Facts  Show- 
ing That  Injury  or  Death  Occurred  Under  Condi- 
tions Described  in  Federal  Act. — In  order  to  recover 

254 


PLEADINGS  255 

in  an  action  based  upon  the  Federal  Employers'  Lia- 
bility Act,  the  plaintiff  should  allege  facts  showing 
that  at  the  time  of  the  accident  the  defendant  was 
engaged  as  a  common  carrier  by  railroad  in  inter- 
state commerce  and  that  the  plaintiff  (or  the  dece- 
dent) was  emiDloyed  by  the  defendant  in  such  com- 
merce at  the  same  time.^  If  the  plaintiff's  petition 
states  a  cause  of  action  under  the  state  law,  no  re- 
covery can  be  had  under  the  federal  act,  notwith- 
standing the  evidence  shows  that  the  plaintiff's 
rights  are  governed  by  that  statute.-  One  of  the 
Missouri  courts  of  appeal  decided  that  it  was  not 

1.  North  Carolina  R.  Co.  v.  Zachary,  232  U.  S.  248,  58  L.  Ed.  591, 
6  N.  C.  C.  A.,  194n,  Ann.  Cas.  1914  C  159n;  St.  Louis,  S.  F.  &  T.  Ey. 
Co.  V.  Seale,  229  U.  S.  156,  57  L.  Ed.  1129,  3  N.  C.  C.  A.  800,  Ann. 
Cas.  1914  C  156n;  Shade  v.  Northern  P.  Ry.  Co.,  206  Fed.  353,  6  N.  C. 
C.  A.  93n ;  Southern  Ry.  Co.  v.  Howerton,  —  Ind.  — ,  106  N.  E.  369 ; 
Chicago,  R.  I.  &  P.  Ry.  Co.  v.  McBee,  —  Okla.  — ,  145  Pac.  331. 

Concerning  the  necessity  of  pleading  facts  showing  that  the  suit 
is  brought  under  the  Federal  Employers'  Liability  Act,  the  Supreme 
Court  of  Alabama  in  reversing  the  case  of  Atlantic  C.  L.  Ry.  Co.  v. 
Jones,  9  Ala.  App.  499,  said :  "  It  is  essential  to  the  certain  and 
orderly  administration  of  the  law  of  master  and  servant,  as  these 
distinct  enactments  establish  it,  that  the  initial  pleading,  or  its 
amendment,  be  so  drawn  that  the  courts  may  be  able  to  determine 
under  which  of  the  two  enactments,  state  or  federal,  the  respective 
counts  are  intended  to  assert  a  claim  for  liability.  The  suiEciency 
vel  noil  of  counts  under  our  state  statute  necessarily  involve  ques- 
tions that  will  not  arise  upon  the  issue  of  sufficiency  vel  non  of 
counts  seeking  to  declare  upon  a  liability  under  the  federal  statute; 
and  the  provisions  of  the  latter  enactment  forbid  matters  of  defense 
admissible  in  an  action  under  the  state  statute. ' '  Ex  Parte  Atlan- 
tic C.  L.  R.  Co.,  —  Ala.  — ,  67  So.  256. 

2.  Gaines  v.  Detroit,  G.  H.  &  M.  C.  Ry.  Co.,  —  Mich,  — ,  6  N.  C 
C.  A.  202n,  148  N.  W.  397;  Moliter  v.  Wabash  R.  Co.,  —  Mo.  App. 
6  N.  C.  C.  A.  75n,  78n,  81n,  186n,  233n,  168  S.  W.  250 ;  Rich  v.  St 
Louis  &  S.  F.  R.  Co.,  166  Mo.  App.  379 ;  Penny  v.  New  Orleans  G.  N 
Ey.  Co.,  —  La.  — ,  66  So.  313 ;  Midland  V.  R.  Co.  v.  Ennis,  —  Ark,  — 
6  N.  C.  C.  A.  80n,  234u,  159  S.  W.  215. 


256        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

necessary  in  a  petition  to  recover  under  the  federal 
act  to  allege  that  the  railroad  company  was  en- 
gaged in  interstate  commerce  as  the  court  will  take 
judicial  notice  that  all  railroads  in  the  state  are 
engaged  in  interstate  commerce,^  but  this  decision 
lays  down  a  rule  that  is  contrary  to  the  weight  of 
authority.^ 

A  petition  charging  negligence  under  the  original 
Safety  Appliance  Act  was  held  to  state  no  cause  of 
action  for  the  reason  that  there  was  no  allegation  in 
the  petition  that  the  cars  having  the  defective  coup- 
lers were  at  the  time  of  the  injury  being  used  in 
interstate  commerce.^  A  petition  which  does  not 
state  that  the  defendant  was  a  common  carrier  is 
defective.^ 

3.  Mcintosh  v.  St.  Louis  &  S.  F.  E.  Co.,  —  Mo.  App.  — ,  168 
S.  W.  821. 

4.  Moliter  v.  Wabash  E.  Co.,  —  Mo.  App.  — ,  168  S.  W.  250; 
Chicago,  E.  I.  &  P.  Ey.  Co.  v.  McBee,  —  Okla,  — ,  145  Pac.  331 ;  North 
Carolina  E.  Co.  v.  Zachary,  232  U.  S.  248,  58  L.  Ed.  591,  6  N.  C.  C.  A. 
194n,  Ann.  Cas.  1914  C  159n,-  Atlantic  C.  L.  E.  Co.  v.  Eeaves,  125 
C.  C,  A.  599,  208  Fed.  141;  Seaboard  A,  L.  Ey.  Co.  v.  Duvall,  225 
U.  S.  477,  56  L.  Ed.  1171;  Fort  Worth  &  D.  C.  Ey.  Co.  v.  Stalcup, 
—  Tex.  — ,  167  S.  W.  279.  The  Supreme  Court  of  Michigan  held  that 
it  was  not  necessary  for  the  plaintiff  in  any  action  for  personal 
injuries  agaiast  a  common  carrier  or  railroad  to  "plead  either  statute 
(state  or  federal)  but  that  upon  the  coming  in  of  the  proofs,  it  was 
the  duty  of  the  trial  court  to  permit  an  amendment  of  the  pleadings 
to  conform  thereto."  Under  this  decision  the  defendant  is  not 
entitled  to  notice  by  the  pleadings,  before  the  trial,  as  to  which  law, 
state  or  federal,  the  plaintiff  is  relying  upon.  Fernette  v.  Pere 
Marquette  E.  Co.,  —  Mich.  — ,  6  N.  C.  C.  A.  231n,  144  N.  W,  834; 
contra,  Gaines  v.  Detroit,  G.  H.  &  M.  Ey.  Co.,  —  Mich.  — ,  6  N.  C. 
C.  A.  202n,  148  N.  W.  397. 

5.  Brinkmeier  v.  Missouri  P.  Ey.  Co.,  224  U.  S.  268,  56  L.  Ed.  758, 
3  N.  C.  C.  A.  795n,  affirming  same  case  reported  in  81  Kan.  101. 

6.  Shade  v.  Missouri  P.  E.  Co.,  206  Fed.  353,  6  N.  C.  C.  A.  93n. 


PLEADINGS  257 

§149.  If  Petition  States  Cause  of  Action  Solely 
Under  Federal  Law,  There  Can  Be  No  Recovery  Un- 
der State  Law — Contrary  Rulings. — In  any  action 
by  an  employe  against  a  railroad  company  for  in- 
juries, if  tlie  petition  states  facts  which  constitute  a 
cause  of  action  solely  under  the  federal  act,  and  it 
develops  at  the  close  of  the  evidence,  the  plaintiff 
was  not  engaged  in  interstate  commerce,  the  cause 
should  not  be  submitted  to  the  jury  under  the  laws 
of  the  state,  although  after  eliminating  the  allega- 
tions as  to  interstate  employment,  the  petition  states 
facts  sufficient  to  constitute  a  cause  of  action  under 
the  state  law."  This  rule,  however,  does  not  apply 
when  the  petition  states  a  cause  of  action  under  the 
state  law  in  one  count  and  under  the  federal  law  in 
another  count. ^ 

The  Kentucky  Court  of  Appeals,  however,  held 
that  even  under  a  petition  stating  a  cause  of  action 
solely  under  the  federal  act,  the  cause  should  be, 
under  the  conditions  stated,  submitted  under  the 
state  law.''  It  is  impossible  to  harmonize  this  ruling 
with  the  cases  previously  cited  herein  and  also  with 
the  cases  cited  in  the  preceding  paragraph,  holding 
that  under  a  petition  stating  a  cause  of  action  under 
the  state  law,  a  recovery  cannot  be  had  imder  the 
federal  act;  for  whatever  is  the  true  rule,  it  ought 

7.  Midland  V.  E.  Co.  v.  Ennis,  109  Ai-k.  206,  6  N.  C.  C.  A.  80n, 
23411 ;  Moliter  v.  Wabash  E.  Co.,  —  Mo.  App.  —,-6  N.  C.  C.  A.  75n, 
78n,  81n,  186n,  233n,  168  S.  W.  250;  Gaines  v.  Detroit,  G.  H.  &  N. 
Ey.  Co.,  —  Mich.  — ,  6  N.  C.  C.  A.  202n,  148  N.  W.  397 ;  Creteau  v. 
Chicago  &  N.  W.  By.  Co.,  113  Minn.  418. 

8.  Section  152,  infra;  Ullrich  v.  New  York,  N.  H.  &  H.  E.  Co.,  193 
Fed.  768. 

9.  Jones  v.  Chesapeake  &  O.  Ey.  Co.,  149  Ky.  566. 

Roberts  Liabilities — 1 7 


258        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

to  work  both  ways  and  there  can  be  no  difference  in 
principle  between  cases  holding  that  the  petition 
miist  allege  a  cause  of  action  under  it,  if  a  recovery 
is  sought  under  the  federal  act  and  a  case  in  which 
the  plaintiff  is  seeking  a  recovery  under  the  state 
law  when  his  petition  declares  a  cause  of  action 
under  the  federal  act.  In  deciding  the  Jones  case, 
cited  in  the  notes,  the  Kentucky  Court  of  Appeals, 
upon  the  question  under  discussion,  cited  a  case  de- 
cided by  a  federal  district  court  as  approving  such 
a  practice;  ^°  but  in  that  case,  the  question  was  not 
passed  upon,  the  controversy  being  as  to  the  re- 
movability of  a  cause  under  the  federal  act,  which 
also  stated  a  cause  of  action  under  the  state  law. 

To  permit  a  plaintiff  to  allege  a  cause  of  action 
under  the  federal  act  and  then  after  all  the  evidence 
is  in,  if  it  appears  that  he  was  not  engaged  in  inter- 
state commerce,  to  submit  the  case  under  the  state 
law,  might  work  an  injustice  upon  the  defendant; 
for  there  are  defenses  to  actions  under  state  laws, 
which  he  might  have  set  up  in  his  answer,  and  which 
he  would  not,  in  an  action  under  the  federal  act.  In 
such  a  case  as  the  petition  only  stated  a  cause  of 
action  under  the  federal  act,  a  defendant  could 
scarcely  be  expected  to  anticipate  that  the  plaintiff, 
at  the  close  of  the  evidence,  would  switch  from  law 
to  law  so  as  to  make  it  obligatory  upon  the  defend- 
ant to  set  up  defenses  to  a  law  not  pleaded,  or  relied 
upon  in  the  petition.  The  converse  of  this  rule  has 
properly  been  applied  to  the  defendant  in  an  action 
under  the  federal  act,  for  it  has  been  repeatedly  de- 

10.  UUrich  v.  New  York,  N.  H.  &  H.  E.  Co.,  193  Fed.  768. 


PLEADINGS  259 

cided  that  a  defendant  cannot  defeat  the  plaintiff's 
right  to  recover  under  a  state  law,  by  claiming  that 
he  was  engaged  in  interstate  commerce  at  the  time, 
unless  such  a  defense  is  pleaded  in  the  answer. ^^  If 
such  a  defense  is  to  be  made,  the  plaintiff  should 
have  notice  of  it,  so  that  he  may  take  such  action  as 
may  be  necessary  to  protect  his  interest.  On  the 
other  hand,  if  a  plaintiff  expects  to  recover  under  a 
state  law,  he  should  be  required  to  plead  it  in  his 
petition  so  that  the  defendant  may  not  be  taken  by 
surprise.  In  passing  upon  the  question  under  dis- 
cussion, the  language  of  the  Supreme  Court  of  Ar- 
kansas in  Midland  V.  Ey.  Co.  v.  Ennis,  cited  supra, 
states  the  rule  that  should  be  applied  in  such  cases, 
as  follows:  "It  is  insisted  now  that,  appellee  having 
sued  under  the  Employers'  Liability  Act,  he  cannot 
recover  in  this  action  under  the  laws  of  the  State  of 
Oklahoma  for  an  injuiy  which  occurred  while  the 
deceased  was  engaged  in  intrastate  commerce. 
Facts  which  give  the  right  to  recover  under  the  state 
law,  and  those  which  give  the  right  to  recover  under 
the  federal  statute,  constitute  separate  and  distinct 
causes  of  action,  for  the  federal  statute  is  exclusive 
where  the  incident  is  embraced  within  interstate 
commerce  service  and  does  not  apply  where  it  is  in 
intrastate  service.  The  two  causes  of  action  may, 
however,  be  joined  in  the  same  complaint.  Earby's 
Digest,  §  6079,  subd.  6.  There  cannot,  however,  be  a 
recovery  upon  a  cause  of  action  other  than  that 
stated  in  the  pleadings  and  upon  which  the  issue  is 

11.  Section  160,  infra.     If  the  plaintiff 's  proof  shows  a  cause  of 
action  under  the  federal,  then  there  is  a  variance.     Section  160,  infra. 


260        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

joined.  Patrick  v.  Whitley,  75  Ark.  465,  85  S.  W. 
1179,  5  Ann.  Cas.  672;  St.  Louis,  S.  F.  &  T.  Ky.  Co.  v. 
Seale,  229  U.  S.  156,  33  Sup.  Ct.  651,  57  L.  Ed.  1129 
(3  N.  C.  C.  A.  800,  Ann.  Cas.  1914  C  156n)." 

§  150.  Petition  Stating  a  Cause  of  Action  Under 
State  Law,  Recovery  Permitted  Under  Federal  Act 
When  Omitted  Alleg-ations  Are  Supplied  by  the 
Answer.— Even  though  a  petition  for  damages  by  an 
employe  against  a  railroad  company  is  silent  as  to 
the  allegations  necessary  to  constitute  a  cause  of 
action  under  the  federal  act,  i.  e.,  engagement  of  the 
one  and  employment  of  the  other  by  it  in  interstate 
commerce  at  the  time  of  the  injury,  yet  nevertheless 
at  least  two  appellate  courts  have  sustained  on  ap- 
peal a  recovery  upon  such  a  petition  without  amend- 
ment, under  the  federal  act,  under  the  following 
circumstances:  When  the  defendant's  answer  al- 
leged it  was  engaged  and  the  injured  sei-vant  was 
employed,  in  interstate  commerce  at  the  time  of  the 
injury  and  the  plaintiff  admitted  such  allegations  in 
his  reply,  a  recovery  under  the  federal  act  was  sus- 
tained on  appeal  because  the  allegations  necessary 
to  state  a  good  cause  of  action  under  the  federal  act 
were  supplied  by  the  defendant 's  answer,  and  under 
the  doctrine  of  aider,  the  defect  in  the  petition  was 
cured  by  the  answer.  ^^    The  courts  in  the  opinions 

12.  Vickery  v.  New  London  N.  E.  Co.,  87  Comi.  634,  4  N.  C.  C.  A. 
218n,  6  N.  C.  C.  A.  75n,  93n,  230n;  White  v.  Central  V.  Ey.  Co.,  87 
Vt.  330,  6  N.  C.  C.  A.  75n,  92n,  lOln,  450n;  .Niles  v.  Central  V.  Ey.  Co., 
87  Vt.  356,  6  N.  C.  C.  A.  75n. 

A  verdict  against  a  railroad  company  for  the  death  of  a  car 
repairer  engaged  in  interstate  commerce,  was  sustained  by  the  Su- 
preme Court  of  Arkansas  although  the  complaint  did  not  expressly 
declare  under   the  federal  statute.     The  decedent  was  repairing  a 


PLEADINGS  261 

cited  tacitly  recognized  the  general  rule  that  a  re- 
covery under  the  federal  act  would  not  be  permitted 
under  a  petition  stating  a  cause  of  action  under  the 
laws  of  the  state  and  also  specifically  held  that  the 
rule  of  express  aider  in  pleadings  does  not  go  to  the 
extent  of  curing  a  petition  which  states  no  cause  of 
action ;  but  held  such  petitions,  being  silent  as  to  the 
employment  of  one  and  the  engagement  of  the  other 
in  interstate  commerce,  merely  stated  a  defective 
cause  of  action  under  the  federal  act.  To  the  extent 
of  holding  that  a  petition  for  damages  under  the 
laws  of  a  state,  states  also  a  cause  of  action  under 
the  federal  act  although  defective,  the  cases  cited  in 
this  paragraph  seem  to  conflict  with  the  rulings  by 
other  courts  cited  elsewhere. ^^  The  plaintiff  in  the 
Vickery  case  cited,  had  been  placed  in  a  predica- 
ment endangering  his  right  to  recover  by  a  former 
opinion  of  the  same  court,  and  his  failure  to  keep 
alive  his  cause  of  action  under  the  federal  act  was 
due  to  the  court's  own  error  in  a  former  opinion  in 
another  case  subsequently  reversed  by  the  Supreme 
Court  of  the  United  States.^^    In  the  former  opinion 

car  in  Arkansas  consigned  from  Kansas  City,  Missouri,  to  Tucker- 
man,  Arkansas.  The  court  said :  ' '  The  plaintiff  does  not,  in  her 
complaint,  expressly  declare  upon  the  federal  statute  known  as  the 
'Federal  Employers'  Liability  Act.'  Nor  does  the  complaint  even 
contain  an  allegation  that  Sharp  was  engaged  in  work  on  a  car 
used  in  interstate  commerce;  but  that  fact  is  set  forth  in  the 
answer  and  the  case  was  tried  under  the  terms  of  that  statute. 
The  rights  of  the  parties  must  therefore  be  determined  by  the 
terms  of  the  federal  statute,"  St.  Louis,  I.  M.  &  S.  Ey.  Co.  v. 
Sharp,  —  Ark.  — ,  171   S.  W.  95. 

13.  Sections  148  and  149,  supra. 

14.  Second  Employers '  Liability  Cases,  223  TJ.  S.  1,  56  L.  Ed.  327, 
1  N.  C.  C.  A.  875,  38  L.  E.  A.  (N.  S.)  44. 


262        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

in  tlie  other  case  the  court  had  declared  the  Employ- 
ers' Liability  Act  of  1908  invalid  as  being  in  conflict 
with  the  Constitution  of  the  United  States.  Th« 
plainti:ff  in  the  Vickery  case,  relying  upon  this  opin- 
ion, brought  his  action  against  the  railroad  company 
under  the  state  law.  It  was  conceded  that  he  was 
engaged  in  interstate  commerce.  After  the  two-year 
period  of  limitation  under  the  federal  act  had  ex- 
pired, the  United  States  Supreme  Court  in  the  Mon- 
dou  case  held  that  the  federal  act  was  valid. ^^  The 
plaintiff  then  sought  to  amend  his  petition  by  alleg- 
ing that  the  defendant  was  engaged  and  that  he  was 
employed  in  interstate  commerce  at  the  time  of  the 
injury.  The  trial  court  refused  to  permit  an  amend- 
ment on  the  ground  that  the  cause  of  action  under 
the  federal  act  had  expired.  Afterwards  the  de- 
fendant filed  an  amended  answer  alleging  the  en- 
gagement of  the  company  and  the  employment  of 
the  plaintiff  in  interstate  commerce  at  the  time  of 
the  injury.  The  plaintiff  then  filed  a  reply,  admit- 
ting these  allegations  of  the  amended  answer  and 
concluded  his  reply  with  a  prayer  for  recovery  under 
the  federal  act.  To  this  reply  the  defendant  de- 
murred because,  among  other  things,  it  was  a  de- 
parture from  the  original  petition.  The  trial  court 
overruled  the  demurrer  and  the  defendant,  refusing 
to  stand  on  the  demurrer,  proceeded  to  trial.  On 
the  issues  thus  framed  by  the  pleadings  a  trial  was 
had  with  the  usual  result — a  verdict  by  the  jury 
against   the    railroad   company.    In   the   appellate 

15.  tSection  4,  supra. 


PLEADINGS  263 

court  the  case  therefore  turned  upon  questions  of 
pleading  and  the  court  held,  (a)  that  the  plaintiff's 
petition  stated  a  cause  of  action  defectively  under 
the  federal  act  as  distinguished  from  a  defective 
cause  of  action,  (b)  that  the  answer  supplied  the 
defective  allegations  of  the  petition,  (c)  that  a  peti- 
tion which  states  no  cause  of  action  cannot  be  aided 
by  allegations  in  an  answer,  (d)  that  a  petition 
which  states  a  cause  of  action  defectively  under  the 
federal  act  may  be  aided  by  allegations  in  the  answer 
although  filed  after  the  two-year  period  of  limitation, 
and  (e)  that  defendant's  demurrer  to  the  reply  on 
the  ground  of  departure  was  under  the  rules  of 
pleading  in  that  state,  waived  by  going  to  trial.  In 
the  other  case  by  the  same  court,  Niles  v.  Central 
V.  Ry.  Co.,  cited  supra,  it  was  held  by  the  court  that 
when  a  petition  stated  a  cause  of  action  under  the 
state  law  and  the  plaintiff  sought  in  his  reply  to 
allege  facts  showing  liability  under  the  federal  act, 
such  matter  constituted  a  departure. 

§  151.  Recovery  Under  Petition  Stating'  Cause  of 
Action  Under  State  Law  Though  Evidence  Shows  a 
Case  Under  Federal  Act,  Harmless  Error  on  Appeal, 
When. — Notwithstanding  that,  in  an  action  by  an 
employe  against  a  railroad  company,  the  evidence 
disclosed  that  the  carrier  was  engaged  and  the  in- 
jured servant  was  employed  in  interstate  commerce, 
but  the  petition  was  based  upon  the  state  law  and  a 
recovery  was  permitted  by  the  trial  court  under  the 
state  law,  yet  such  an  error  will  not  work  a  reversal 
on  appeal,  unless  the  defendant  has  been  prejudiced 


264        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

thereby.  ^^  For  instance,  it  has  been  held  that,  if 
the  federal  law  was  more  favorable  to  the  defendant 
than  the  state  law,  it  would  not  be  a  reversible  error 
for  the  appellate  court  to  let  a  recoveiy  under  the 
state  law  stand  even  though  the  evidence  disclosed 
a  case  under  the  federal  law,  the  error  in  such  a  case 
not  being  material  and  prejudicial.^^  In  another 
case,  where  under  similar  circumstances,  defendant 
availed  himself  during  the  trial,  of  all  the  defenses 
that  he  would  have  had  under  the  federal  law,  it 
was  held  that  the  trial  court,  in  permitting  a  recovery 
under  the  state  law,  did  not  commit  such  an  error  as 
would  require  a  reversal  because  it  did  not  appear 
that  the  defendant  had  in  any  way  been  prejudiced. ^^ 
Courts  are  not  inclined  to  listen  with  patience  to 
defenses  as  to  which  law  is  applicable  when  the 
claim  is  made  or  denied  as  the  exigencies  of  the 
situation  may  be  advantageous  to  the  defendant  that 
the  plaintiff  and  the  defendant  were  engaged  in 
interstate  commerce  if  it  appears  from  all  the  facts 

16.  Femette  v.  Pere  Marquette  K.  Co.,  —  Mich.  — ,  6  N.  C.  C.  A. 
231n,  144  N.  W.  834. 

17.  Mcintosh  v.  St.  Louis  &  S.  F.  R.  Co.,  —  Mo.  App.  — ,  168 
S.  W.  821. 

18.  Southern  Ry.  Co.  v.  Howerton,  —  Ind.  — ,  101  N.  E.  121 ;  s.  c, 
—  Ind.  — ,  6  N.  C.  C.  A.  75n,  82n,  105  N.  E.  1025.  In  an  action  by  an 
employe  against  a  common  carrier  by  railroad  for  injuries,  the 
petition  stated  a  cause  of  action  under  the  common  law.  Defendant 
pleaded  in  its  answer  that  the  plaintiff  had  accepted  benefits  from  a 
relief  fund,  thus  releasing  the  defendant.  Plaintiff  in  his  reply  pleaded 
the  federal  statute  abolishing  such  defenses  (See  §  121,  infra)  and 
proved  facts  showing  federal  statute  applied.  Defendant  at  the 
trial  admitted  plaintiff  was  employed  in  interstate  commerce.  It  was 
held  that  the  cause  should  have  been  submitted  to  the  jury  under 
the  federal  act  as  the  defendant  was  not  prejudiced  thereby.  Hogarty 
V.  PhUadelphia  &  R.  R.  Co.,  245  Pa.  443. 


PLEADINGS  265 

in  the  case  that  such  defenses  are  made  purely  for 
delay  and  where  they  do  not  affect  the  substantial 
rights   of   the   parties. ^^    In   the   Nelson   case   his 
original  complaint  stated  a  cause  of  action  under 
both  the  federal  and  the  state  law.    The  defendant 
in  answering  admitting  that  the  plaintiff  was  in- 
jured, but  denied  that  either  the  plaintiff  or  the 
defendant  was  engaged  in  interstate  commerce  at 
the  time  of  the  accident  and  injury.    A  further  de- 
fense of  contributory  negligence  and  assumption  of 
risk  was  pleaded.  After  the  jury  was  empanelled  and 
sworn,  the  counsel  for  defendant  admitted  that  the 
defendant  was  liable  for  the  injury  to  plaintiff  unless 
the  latter  assumed  the  risk  of  the  injury  or  was 
guilty  of  contributory  negligence.  Thereupon,  before 
any  evidence  was  introduced,  the  plaintiff  immedi- 
ately moved  to  amend  his  petition  by  striking  out  the 
allegation  that  he  and  the  defendant  were  engaged 
in  interstate  commerce  so  that  the  complaint  stated 
a  cause  of  action  under  the  state  law.    Although  the 
defendant  had  denied  in  its  answer  that  either  of  the 
parties  were  engaged  in  interstate  commerce,  de- 
fendant's counsel  objected  to  the  amendment.  Coun- 
sel for  plaintiff  then  offered  to   admit  that   both 
parties   were    engaged    in   interstate    commerce    if 
counsel  for  defendant  wished  to  allege  that  fact.  The 
offer  was  not  accepted  and  the  court  granted  the 
plaintiff's  motion  to  amend  its  petition  which  after 
the  amendment  stated  only  a  cause  of  action  under 
the  state  law.    After  the  plaintiff's  amendment  was 
made  defendant's  counsel  amended  his  answer  by 

19.  lUicois  C.  E.  Co.  v.  Nelson  (C.  C.  A.),  212  Fed.  69. 


266        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

alleging  that  the  defendant  was  engaged  in  inter- 
state commerce  at  the  time  of  plaintiff's  injury  but 
did  not  allege  that  the  plaintiff  was  also  employed 
in  such  commerce  at  the  same  time.  In  the  course 
of  the  trial  evidence  was  introduced  which  tended 
to  prove  that  each  of  the  parties  was  engaged  in 
interstate  commerce.  No  substantial  evidence  was 
introduced  in  support  of  the  defense  of  assumption 
of  risk  or  contributory  negligence.  At  the  close  of 
all  the  evidence  the  plaintiff  moved  to  strike  out  the 
evidence  that  the  parties  were  engaged  in  interstate 
commerce  at  the  time  of  the  accident,  on  the  ground 
that  the  answer  did  not  set  up  that  defense.  Counsel 
for  defendant  moved  to  amend  the  answer  so  as  to 
plead  that  defense  but  his  motion  was  denied  and  the 
motion  of  the  plaintiff  to  strike  out  the  evidence  was 
granted.  The  federal  circuit  court  of  appeals  in 
considering  this  case  on  appeal  held  that  in  view  of 
the  fact  that  the  negligence  was  admitted  and  that 
no  evidence  of  assumption  of  risk  or  contributory 
negligence  was  introduced  by  defendant,  that  the 
errors  of  the  court  did  not  prejudice  the  defendant. 
Speaking  of  these  gymnastic  gyrations  of  a  litigant 
in  a  court  of  justice  Judge  Sanborn,  for  the  court, 
said:  ''No  error  is  perceived  in  these  rulings.  The 
defendant  was  offered  its  choice  of  the  defense  of  a 
cause  of  action  for  an  admitted  liability  under  the 
federal  law  or  under  the  state  law.  When  the  plain- 
tiff alleged  that  his  cause  of  action  arose  under  the 
federal  law,  the  defendant  denied  that  it  arose  under 
that  law.  When  the  plaintiff  alleged  by  an  amend- 
ment that  his  cause  of  action  arose  under  the  state 


PLEADINGS  267 

law,  counsel  for  the  defendant  now  insists  that  he 
intended  to  amend  his  answer  so  as  to  plead  that  it 
arose  under  the  federal  law.  The  court  held  that  his 
amended  pleading  was  insufficient  to  present  that 
issue,  and  that  ruling  was  clearly  right,  for  it  was 
indispensable  to  a  plea  of  that  fact  that  the  defendant 
should  aver  that  the  plaintiff  and  his  employer  were 
each  engaged  in  interstate  commerce  at  the  time  of 
the  accident,  and  the  defendant  did  not  allege  that 
the  plaintiff  was  so  engaged.  Tliere  was  no  error 
in  the  gTanting  of  the  motion  to  strike  out  the 
evidence  to  the  effect  that  the  parties  were  engaged 
in  interstate  commerce  because  there  was  no  plead- 
ing to  warrant  its  admission  and  it  was  no  abuse  of 
discretion  for  the  court  to  refuse  the  defendant  per- 
mission, at  the  close  of  the  trial,  to  inject  that  issue 
into  the  case  when  the  record  conclusively  proved 
that  the  only  purpose  of  the  attempt  to  introduce  it 
was  to  postpone  the  plaintiff' 's  recovery  of  damages 
caused  by  the  admitted  negligence  of  the  defendant. 
Not  only  this,  but  if  there  had  been  error  in  these 
rulings  it  would  not  have  been  fatal  to  this  trial, 
because  defendant's  liability  for  its  negligence  was 
admitted,  there  was  no  substantial  evidence  of  the 
plaintiff's  assumption  of  the  risk  of  his  injury,  or  of 
his  contributory  negligence,  the  same  person,  the 
plaintiff,  was  entitled  to  recover  whether  his  cause 
of  action  arose  under  the  federal  law  or  under  the 
state  law,  the  only  question  remaining  at  issue  was 
the  amount  of  the  recoverable  damages,  and  the  rules 
for  the  measurement  of  these  damages  were  identical 
under  the  federal  law  and  under  the  state  law,  so 


268        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

that  it  appeared  beyond  doubt  from  the  pleadings 
and  the  evidence  that  an  error  in  these  rulings  did 
not  prejudice  and  could  not  have  prejudiced  the  de- 
fendant, and  error  without  prejudice  is  no  ground 
for  reversal.  Where,  in  an  action  against  a  common 
carrier  for  a  negligent  injury,  the  same  party,  if 
any  one,  is  entitled  to  recover  on  the  alleged  cause  of 
action,  and  the  rules  of  law  governing  the  trial  of 
the  issues  in  the  case  are  the  same  under  the  Federal 
Employers'  Liability  Act  and  under  the  state  laws, 
and  no  question  of  jurisdiction  is  involved,  it  is  im- 
material whether  the  action,  trial,  and  judgment  are 
had  under  the  federal  law  or  under  the  state  law. 
Because  there  was  no  substantial  evidence  to  sustain 
a  verdict  that  the  plaintiff  assumed  the  risk  of  his 
injury  or  that  he  was  guilty  of  contributory  negli- 
gence, this  record  satisfies  beyond  doubt  that  the 
alleged  errors  in  the  rulings  of  the  court  on  these 
subjects,  as  well  as  on  matters  relating  to  the  ques- 
tion whether  the  cause  of  action  arose  imder  the 
federal  law  or  under  the  state  law,  did  not  prejudice 
and  could  not  have  prejudiced  the  defendant,  and 
they  are  accordingly  dismissed  without  further  dis- 
cussion, whether  they  were  made  upon  questions 
regarding  the  pleadings,  upon  the  admission  or  ex- 
clusion of  evidence,  in  the  charge  of  the  court,  or 
in  its  refusal  of  requested  instructions." 

§  152.  Pleading  Cause  of  Action  Under  State  Law 
in  One  Count  and  Under  Federal  Act  in  Another 
Count,  Allowed. — All  of  the  courts  have  generally 
agreed  on  the  proposition  that  the  plaintiff,  he  is  the 
proper  party  under  both  laws,  may  set  up  facts  in 


PLEADINGS  269 

one  count  of  the  petition  showing  liability  under  the 
federal  act,  and  may,  in  another  count  of  the  same 
petition,  plead  facts  showing  liability  under  the  state 
law.  In  other  words,  the  pleader  may  charge  a  viola- 
tion of  both  laws  in  separate  counts  of  the  same 
petition.  After  so  pleading  liability  under  both 
laws,  at  what  stage  of  the  proceedings  subsequently, 
he  will  be  required  to  elect,  if  at  all,  depends  upon 
the  rules  of  procedure  of  the  courts  of  the  state 
where  the  suit  is  pending.  As  the  federal  law,  when 
applicable,  gives  the  exclusive  remedy  and  as,  in 
some  states,  the  questions  involved  under  the  state 
and  federal  act  are  very  different,  some  conflict  has 
arisen  as  to  when  a  motion  to  elect,  should  be  sus- 
tained, and  these  cases  will  be  hereinafter  reviewed. 
On  the  other  proposition,  as  to  whether  liability 
under  the  two  laws  may  be  pleaded  in  separate 
coimts  in  the  same  petition,  the  Supreme  Court  of 
the  United  States  approved  the  practice,  although 
such  questions  necessarily  depend  upon  the  rules  of 
pleading  in  the  state  where  the  action  is  pending.^*^ 
In  the  Hayes  case,  the  United  States  Supreme  Court 
said:  ''The  plaintiff  asserted  only  one  right  to  re- 
cover for  the  injury,  and  in  the  nature  of  things  he 
could  have  but  one.     "Whether  it  arose  under  the 

20.  Wabash  E.  Co.  v.  Hayes,  234  U.  S.  86,  58  L.  Ed.  1226,  6  N.  C. 
C.  A.  224,  affirming  same  case  reported  in  180  111.  App.  511;  Bankson 
V.  Illinois  C.  E.  Co.,  196  Fed.  171;  Midland  V.  E.  Co.  v.  Ennis, 
—  Ark.  — ,  6  N.  C.  C.  A.  80n,  234n,  159  S.  W.  214;  Atkinson  v.  Bill- 
iard, —  Ga.  App.  — ,  6  N.  C.  C.  A.  80n,  183n,  80  S.  E.  220.  A 
demurrer  on  the  ground  of  mis.ioiader  of  counts  where  a  cause  of  action 
under  the  federal  law  is  stated  in  one  count  and  under  the  state  law 
in  another,  should  be  overruled.  Bouchard  v.  Central  V.  E.  Co.,  87 
Vt.  399,  6  N.  C.  C.  A.  78n,  81n. 


270        INJURIES  TO  INTERSTATE  EMPLOYES  ON  R.ULROADS 

federal  act  or  under  the  state  law,  it  was  equally 
cognizable  in  the  state  court;  and  had  it  been  pre- 
sented in  an  alternative  way  in  separate  counts,  one 
containing  and  another  omitting  the  allegation  that 
the  injury  occurred  in  interstate  commerce,  the 
propriety  of  proceeding  to  a  judgment  under  the 
latter  count,  after  it  appeared  that  the  first  could 
not  be  sustained,  doubtless  would  have  been  freely 
conceded.  Certainly  nothing  in  the  federal  act  would 
have  been  in  the  way. ' ' 

§  153.  Petition  Need  Not  Specifically  Refer  to  the 
Act  if  Facts  Showing  Liability  Thereunder  are 
Pleaded. — If  the  petition  of  the  plaintiff  alleges  facts 
which  show  that  the  defendant  was  a  common  carrier 
by  railroad  in  interstate  commerce  at  the  time  of  the 
accident  and  that  the  plaintiff  was  employed  by  it 
in  such  commerce,  the  statute  applies,  although  no 
reference  is  made  to  it  in  the  petition.^^  Since  all 
state  courts  are  required  to  take  judicial  notice  of 
the  federal  law,  it  is  not  necessary  to  specifically 
plead  that  law  if  facts  showing  liability  thereunder 
are  stated  in  the  petition.-^  The  petition  need  not 
state  in  so  many  words  that  the  action  is  brought 
under  the  federal  statute.  It  is  sufficient  if  the  state- 
ment of  facts  in  the  petition  bring  the  cause  within 
the  terms  of  the  statute.^^ 

21.  Grand  T.  W.  Ry.  Co.  v.  Lindsay,  233  U.  S.  42,  58  L.  Ed.  838, 
6  N.  C.  C.  A.  90,  91n,  Ann.  Cas.  1914  C  168n;  Garrett  v.  Louisiana 
&  N.  Ry.  Co.,  —  U.  S.  — ,  35  Sup.  Ct.  32;  s.  c,  117  C.  C.  A.  109,  197 
Fed.  715,  3  N.  C.  C.  A.  769,  4  N.  C.  C.  A.  925n;  KeUy  v.  Chesapeake 
&  O.  Ey.  Co.,  201  Fed.  602 ;  Vandalia  E.  Co.  v.  Stringer,  —  Lnd.  — , 
106  N.  E.  865. 

22.  McDonald  v.  Railway  T.  Co.,  121  Minn.  273. 

23.  Kansas  City  S.  Ry.  v.  Cook,  100  Ark.  467 ;  Cound  v.  Atchison,  T. 


PLEADINGS  271 

§154.  State  Law  as  to  Sufficiency  of  Pleading 
Governs. — In  an  action  under  the  federal  act  brought 
in  the  state  courts,  the  rules  of  pleading  and  pro- 
cedure of  the  state  where  the  action  is  being  prose- 
cuted, governs  throughout.^*  When  a  general 
allegation  of  negligence  is  sufficient  under  the  rules 
applied  by  the  state  courts  in  ordinary  actions,  such 
an  allegation  is  sufficient  in  an  action  under  the 
federal  act  prosecuted  in  the  state  court.^^ 

§  155.  Allegations  as  to  Engagement  in  Interstate 
Commerce  Held  Sufficient. — A  petition  in  an  action 
for  personal  injuries  stating  that  the  defendant  was 
a  common  carrier  by  railroad  and  engaged  in  inter- 
state commerce  between  several  states  and  that  the 
plaintiff  was  employed  as  a  brakeman  on  a  freight 
train  running  from  one  state  to  another,  contained 
sufficient  allegations  to  show  interstate  employment 
within  the  terms  of  the  federal  act.-^  Where  the 
injury  was  stated  in  the  petition  of  plaintiff  in  an 
action  under  the  federal  act,  to  have  been  caused 
by  the  negligence  of  the  railway  company  while  it 
was  engaged  as  a  common  carrier  in  carrying  on 
interstate  commerce  and  while  the  plaintiff  was  em- 
ployed by  it  in  such  commerce,  the  allegation  was 

&  S.  F.  Ry.  Co.,  173  Fed.  527 ;  Clark  v.  Southern  P.  Ey.  Co.,  175  Fed. 
122;  Whittaker  v.  Illinois  C.  Ey.  Co.,  176  Fed.  130. 

24.  Fleming  v.  Norfolk  S.  E.  Co.,  160  N.  C.  196,  6  N.  C.  C.  A.  78n, 
229n;  Chesapeake  &  0.  Ey.  Co.  v.  Kelley's  Adm'x,  —  Ky.  — ,  171 
S.  W.  185;  Gibson  v.  Billingham  &  N.  Ey.  Co.,  213  Fed.  488;  Winters 
V.  Minneapolis  &  St.  L,  E.  Co.,  —  Minn.  — ,  6  N.  C.  C.  A.  78n,  201n, 
148  N.  W.  106. 

25.  LouisvUle  &  N.  E.  Co.  v.  Stewart,  156  Ky.  550,  6  N.  C.  C.  A. 
79n,  447n,  450n,  454n. 

26.  Kansas  City  S.  Ey.  Co.  v.  Cook,  100  Ark.  467. 


272        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

lield  sufficient.^''^  A  petition,  in  an  action  by  an 
administrator  under  the  federal  act,  alleging  that 
the  railroad  on  which  decedent  was  killed  ran  from 
one  state  to  another,  that  he  was  killed  in  making 
up  a  train  to  be  moved  to  another  state  and  that  the 
defendant  ran  trains  over  the  state  line,  contained 
a  suflScient  statement  as  to  the  applicability  of  the 
federal  act  in  connection  with  other  facts  showing 
negligence  and  dependency.^^  A  petition  for  per- 
sonal injuries  against  a  railroad  company  which 
alleged  that  the  company  was  a  corporation  of  the 
state,  that  the  injured  employe  was  working  on  a 

27.  Grand  Trunk  W.  Ey.  Co.  v.  Lindsay,  233  U.  S.  42,  58  L.  Ed.  838, 
6  N.  C.  C.  A.  90,  91n,  Ann.  Cas.  1914  C  168n. 

A  complaint  in  an  action  against  a  common  carrier  by  railroad 
for  injuries  to  a  brakeman  stated  that  the  defendant  was  a  railroad 
corporation  engaged  in  interstate  commerce  and  alleged  that  the 
brakeman  was  injured  by  reason  of  the  carelessness  of  the  engineer 
in  permitting  the  water  to  become  low  on  the  crown  sheet  of  the 
locomotive  and  then  suddenly  injecting  water  into  the  boUer  which 
caused  a  sudden  and  extreme  amount  of  steam  to  be  generated  and 
caused  the  crown  sheet  to  drop  into  the  fire  box,  producing  a  loud 
report  and  noise,  which  led  the  brakeman  to  believe  he  was  in  danger 
of  great  bodUy  harm,  and,  acting  on  that  belief,  jumped  from  the 
window  of  the  cab  and  was  injured.  It  was  held  that  the  com- 
plaint stated  sufficient  facts  to  show  a  cause  of  action  either  under 
the  state  statute  or  under  the  federal  statute.  Vandalia  E.  Co.  v. 
Stringer,  —  Ind.  — ,  106  N.  E.  865.  The  court  in  the  ease  just 
cited  decided  that  the  plaintiff  in  an  action  for  injuries  is  only 
required  to  plead  the  facts  and  that  a  recovery  may  be  then  had 
according  as  the  evidence  may  develop  a  case  under  the  one  liability 
or  the  other.  Wliile  the  complaint  in  this  case  may  have  been  suf- 
ficient under  the  laws  of  the  state,  yet  it  was  not  sufiScient  to  show 
a  cause  of  action  under  the  federal  statute  as  there  was  no  allegation 
or  facts  pleaded  showing  that  the  injured  employe  at  the  time  of 
the  injury  was  employed  in  interstate  commerce  although  there  was 
an  allegation  that  the  raUroad  company  was  so  engaged. 

28.  Fort  Worth  &  D.  C.  Ey.  Co.  v.  Stalcup,  —  Tex.  Civ.  App.  — , 
167  S.  W.  279  J  Hackett  v.  Chicago,  I.  &  L.  E.  Co.,  170  111.  App.  140. 


PLEADINGS  273 

bridge  whicli  formed  a  part  of  the  track  and  roadbed 
of  the  railroad  company  and  that  while  so  engaged 
he  was  injured,  was  held  to  have  stated  a  cause  of 
action  under  the  federal  act  although  the  petition 
did  not  state  that  the  company  was  engaged  in 
interstate  commerce.^^  A  complaint  alleging  that 
the  defendant,  as  a  common  carrier  by  railroad, 
owned  a  line  of  railroad  from  a  point  in  one  state  to 
a  point  in  another  and  that  the  plaintiff  while  work- 
ing on  a  passenger  train  on  said  road,  was  injured  in 
a  headon  collision  due  to  the  negligence  of  the  de- 
fendant, stated  a  cause  of  action  under  the  federal 
act.^^  A  complaint  stating  that  the  plaintiff,  when 
he  was  injured,  was  employed  as  a  fireman  on  a 
passenger  train  running  from  Chicago,  Illinois,  to 
Milwaukee,  Wisconsin,  was  held  sufficient  to  show 
that  the  company  was  engaged  in  interstate  com- 
merce and  that  the  plaintiff  was  employed  by  it  in 
such  commerce. ^^ 

§  156.  Allegation  to  Show  Cause  of  Action  Under 
the  Federal  Act  Held  Not  Sufficient. — An  allegation 
that  '*at  the  time  of  the  injuries  hereinafter  com- 
plained of,  your  petitioner  was  engaged  in  the  trans- 
portation of  interstate  commerce"  was  held  not  to 
state  a  cause  of  action  under  the  National  Employers ' 
Liability  Act  for  the  reason  that  there  was  no  further 
allegation  that  the  railroad  company  was  a  common 
carrier  by  railroad  engaged  in  interstate  commerce 

29.  Mcintosh  v.  St.  Louis  &  S.  F.  Ry.  Co.,  —  Mo.  App.  — ,  168 
S.  W.  821.     The  correctness  of  this  ruling  is  doubtful. 

30.  Seaboard  A.  L.  Co.  v.  Dnvall,  225  U.  S.  477,  56  L.  Ed.  1171. 

31.  Eowlands  v.  Chicago  N.  W.  Ey.  Co.,  149  Wis.  51. 
Boberts  Liabilities — 18 


274        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

at  tlie  time  of  the  injury.^^  In  another  case  it  was 
alleged  in  the  petition  that  the  plaintiff  was  injured 
through  the  negligence  of  a  co-employe,  while  load- 
ing rails  on  a  car.  The  petition  did  not  disclose 
where  the  rails  came  from  or  where  destined  or  the 
destination  of  the  car  after  being  loaded  or  whether 
the  rails  were  old  or  new.  The  court  held  that  the 
allegation  was  insufficient  to  show  employment  in 
interstate  commerce. ^^ 

§  157.  In  Cases  of  Death  Petition  Must  Allege  Sur- 
vival of  Beneficiaries  Named  in  Statute. — Unless  the 
petition  shows,  in  case  of  death,  that  the  deceased 
left  a  widow,  child,  parent  or  dependent  next  of  kin, 
naming  them,  it  does  not  allege  a  cause  of  action 
under  the  federal  act.^^  Where  the  petition  failed 
to  allege  that  decedent  left  any  of  the  beneficiaries 
for  whose  benefit  a  right  of  action  survives  under 
the  federal  act,  the  petition  is  defective  even  though 
it  is  alleged  that  by  reason  of  the  facts  alleged  a 
cause  of  action  had  accrued  to  plaintiff  against 
defendant  under  and  by  virtue  of  that  act.^^  If  the 
petition  in  an  action  under  the  federal  act  fails  to 
allege  that  the  decedent  is  survived  by  a  person  or 
persons  coming  within  one  of  the  three  classes  men- 

32.  Walton  v.  Southern  Ry.  Co.,  179  Ted.  175 ;  contra,  Mcintosh  v. 
Wabash  E.  Co.,  —  Mo.  App.  — ,  168  S.  W.  821. 

33.  Tsmura  v.  Great  N.  R.  Co.,  58  Wash.  316,  3  N.  C.  C.  A.  786n. 

34.  North  Carolina  Ry.  Co.  v.  Zachary,  232  U.  S.  248,  58  L,  Ed. 
591,  6  N.  C.  C.  A.  194n,  Ann.  Cas.  1914  C  159n;  Michigan  C.  E.  v. 
Vreeland,  227  U.  S.  59,  57  L.  Ed.  417,  3  N.  0.  C.  A.  807,  Ann.  Cas. 
1914  C  176n;  Gulf  C,  etc.,  Ey.  Co.  v.  McGinnis,  228  U.  S.  173,  57 
L.  Ed.  785,  3  N.  C.  C.  A.  806,  4  N.  C.  C.  A.  926n;  Thomas  v.  Chicago 
&  N.  W.  Ry.  Co.,  202  Fed.  766,  6  N.  C.  C.  A.  439n,  446n. 

35.  Thomas  v.  Chicago  &  N.  W.  Ry.  Co.,  202  Fed.  766,  6  N.  C.  C. 
A.,  439n,  446n. 


PLEADINGS  275 

tionecl  in  the  statute  it  is  bad  on  demurrer.^^  The 
petition  must  state,  in  case  of  death,  how  many  chil- 
dren there  are  and  their  ages.^^ 

§  158.  Petition  Must  Allege  Pecuniary  Loss  to 
Beneficiaries. — In  any  action  under  the  federal  act 
for  the  negligent  death  of  a  deceased  employe,  the 
petition  must  allege  that  the  beneficiaries  named, 
suffered  pecuniary  loss  from  the  death.  The  federal 
statute  does  not  presume  that  any  of  the  beneficiaries 
are  dependent  upon  the  decedent,  and  as  the  statute 
is  compensatory,  and  not  penal,  such  a  fact  must  be 
alleged  as  proof  of  it  is  required.^^  But  where  a 
declaration  was  defective  because  of  the  omission  of 
this  necessary  allegation,  and  the  point  was  not 
raised  until  the  case  reached  the  appellate  court,  it 
was  held  that  the  objection  came  too  late.^**  In 
affirming  the  decision  of  the  federal  circuit  court  of 
appeals  in  the  Garrett  case,  cited  in  the  notes,  the 
Supreme  Court  of  the  United  States  said:  "Where 
any  fact  is  necessary  to  be  proved  in  order  to  sustain 
the  plaintiff's  right  of  recovery,  the  declaration  must 
contain  an  averment  substantially  of  such  fact  in 
order  to  let  in  the  proof.  Every  issue  must  be  founded 
upon  some  certain  point,  so  that  the  parties  may 

36.  Illinois  C.  Ey.  Co.  v.  Doherty's  Adm'r,  153  Ky.  363,  6  N.  C. 
C.  A.  75n,  440n,  444n,  47  L.  E.  A.  (N.  S.)  Sin. 

37.  Chesapeake  &  O.  Ey.  Co.  v.  Dwyer's  Adm'x,  157  Ky.  590,  6 
N.  C.  C.  A.  449n. 

38.  Garrett  v.  Louisville  &  N.  E.  Co.,  —  U.  S.  — ,  35  Sup.  Ct.  32, 
affirming  same  case  reported  in  117  C.  C.  A.  109,  197  Fed.  715, 
3  N.  C.  C.  A.  769,  4  N.  C.  C.  A.  925n ;  Michigan  C.  E.  Co.  v.  Vreeland, 
227  U.  S.  59,  57  L.  Ed.  417,  3  N.  C.  C.  A.  807,  Ann.  Cas.  1914  C  176n; 
Gulf  C.  &  S.  F.  Ey.  Co.  v.  McGinnis,  228  U.  S.  173,  57  L.  Ed.  785. 
3  N.  C.  C.  A.  806,  4  N.  C.  C.  A.  926n. 

39.  Illinois  C.  E.  Co.  v.  Porter,  207  Fed.  311,  6  N.  C.  C.  A.  98n,  205n. 


276        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

come  prepared  with  their  evidence,  and  not  be  taken 
by  surprise,  and  the  jury  may  not  be  misled  by  the 
introduction  of  various  matters.  Bank  of  United 
States  V.  Smith,  11  Wheat.  (U.  S.)  171,  174,  6  L.  Ed. 
443,  444;  Minor  v.  Mechanics'  Bank,  1  Pet.  (U.  S.) 
46,  67,  7  L.  Ed.  47,  56;  DeLuca  v.  Hughes,  96  Fed.  923; 
Eose  V.  PeiTy,  8  Yerg.  (Tenn.)  156;  Citizens'  Street 
K.  Co.  V.  Burke,  98  Tenn.  650,  40  S.  W.  1085,  2  Am. 
Neg.  Rep.  459;  1  Chitty,  PI.  270.  *  *  *  The 
plaintiff 's  declaration  contains  no  positive  avennent 
of  pecuniary  loss  to  the  parents  for  whose  benefit  the 
suit  was  instituted  Nor  does  it  set  out  facts  or  cir- 
cumstances adequate  to  apprise  the  defendant  with 
reasonable  particularity  that  such  loss  in  fact  was 
suffered.  Common  experience  teaches  that  financial 
damage  to  a  parent  by  no  means  follows  as  a  neces- 
sary consequence  upon  the  death  of  an  adult  son. 
The  plaintiff  expressly  declined  in  both  courts  below 
so  to  amend  his  declaration  as  to  allege  pecuniary 
loss  to  the  parents;  and  judgment  properly  went 
against  him.  The  request  is  now  made  that,  in  view 
of  all  the  circumstances,  especially  the  former  unde- 
termined meaning  of  the  statute,  this  court  remand 
the  cause  for  a  new  trial  upon  the  declaration  being 
so  amended  as  to  include  the  essential  allegation. 
But  we  do  not  think  such  action  would  be  proper. 
The  courts  below  committed  no  error  of  which  just 
complaint  can  be  made  here;  and  the  rights  of  the 
defendant  must  be  given  effect,  notwithstanding  the 
unusual  difficulties  and  uncertainties  with  which 
counsel  for  the  plaintiff  found  himself  confronted. ' ' 


PLEADINGS  277 

§  159.  In  Suits  Under  State  Laws,  Applicability  of 
Federal  Act  May  be  Ra-ised  by  Answer. — In  any 
action  against  a  common  carrier  by  railroad  by  an 
employe  for  personal  injuries  due  to  negligence,  it 
will  be  presumed,  in  the  absence  of  allegations  to 
the  contrary  in  the  petition,  that  the  plaintiff  is  seek- 
ing a  remedy  under  the  laws  of  the  state  and  not 
under  the  federal  act.^°  However,  if  the  injury 
occurred  or  the  death  happened  while  the  common 
carrier  was  engaged  in  interstate  commerce  and  the 
injured  employe  was  working  for  it  in  such  com- 
merce, such  facts  may  be  set  up  in  the  answer  by  the 
defendant  and,  if  proven,  will  defeat  the  plaintiff's 
attempt  to  recover  under  the  laws  of  the  state.^^ 

§  160.  Where  Petition  Is  Under  State  Law  and 
Evidence  Shows  Case  Under  Federal  Statute,  Plain- 
tiff Cannot  Recover. — Wlien  the  petition  in  an  action 
by  an  injured  employe  against  a  common  carrier  by 
railroad  for  damages,  states  facts  which  constitute 
a  cause  of  action  solely  under  the  laws  of  a  state, 
and  the  plaintiff's  evidence  discloses  that  at  the 
time  he  was  injured  the  plaintiff  was  engaged  in 
interstate  commerce  and  that  the  defendant  was  so 
engaged,  there  is  a  fatal  variance  between  the  plead- 

40.  Bradbury  v.  Chicago,  E.  I.  &  P.  Ey.  Co.,  149  Iowa  51,  40 
L.  E.  A.  (N.  S.)  684n;  Erie  E.  Co.  v.  Welsh,  —  Ohio  St.  — ,  6 
N.  C.  C.  A.  77n,  188n,  105  N.  E.  190;  Missoiu-i,  etc.,  Ey.  Co.  v. 
Neaves,  —  Tex.  Civ.  App.  — ,  127  S.  W.  1090;  Missouri,  etc.,  E.  Co.  v. 
Hawley,  —  Tex.  Civ.  App.  — ,  123  S.  W.  726;  Fleming  v.  Norfolk  S. 
Ey.  Co.,  160  N.  C.  196,  6  N.  C.  C.  A.  78n,  229ii;  NeU  v.  Idaho  E.  Co., 
22  Idaho  74. 

41.  Seale  v.  St.  Louis,  S.  F.  &  T.  E.  Co.,  229  U.  S.  156,  57  L.  Ed. 
1129,  Ann.  Cas.  1914  C  156n,  reversing  same  case  reported  in  —  Tex. 
Civ.  App.  — ,  148  S.  W.  1099;  Eich  v.  St.  Louis  &  S.  F.  E.  Co.,  166 
Mo.  App.  379. 


278        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

ing  and  the  proof,  because  tlie  case  pleaded  is  not 
the  case  proven  and  the  case  proven  is  not  the  case 
pleaded.  If  the  defendant,  therefore,  raises  the 
objection  in  the  proper  manner  according  to  the  rules 
of  the  state  where  the  action  is  pending,  the  plaintiff 
cannot  recover  and  the  defendant  is  not  estopped 
from  raising  the  point  although  he  pleaded  in  his 
answer  defenses  which  are  solely  applicable  to  the 
laws  of  the  state.^^    In  the  case  of  Scale  v.  St.  Louis, 


42.  Seale  v.  St.  Louis,  S.  F.  &  T.  E.  Co.,  229  U.  S.  155,  57  L.  Ed. 
1129,  3  N.  C.  C.  A.  800,  Ann.  Cas.  1914  C  156n;  Moliter  v.  Wabash  R. 
Co.,  180  Mo.  App.  84,  6  N.  C.  C.  A.  75n,  87n,  Sin,  86n,  233n;  Winfred  v. 
Northern  P.  E.  Co.,  227  U.  S,  296,  57  L.  Ed.  518,  affirming  173  Fed. 
65 ;  Gaines  v.  Detroit,  G.  H.  &  M.  Ey.  Co.,  —  Mich.  — ,  6  N.  C.  C.  A. 
202n,  148  N.  W.  397 ;  Midland  V.  E.  Co.  v.  Ennis,  —  Ark.  — ,  6  N.  C. 
C.  A.  80n,  234n,  159  S.  W.  215. 

In  Toledo,  St.  L.  &  W.  E.  Co.  v.  Slavin,  —  U.  S.  Sup.  Ct.  — , 
decided  February  23,  1915,  an  action  by  an  employe  against  a  com- 
mon carrier  by  railroad  for  personal  injuries,  neither  the  plaintiff  'a 
complaint  nor  the  defendant's  answer  contained  any  reference  to  the 
Federal  Employers '  Liability  Act.  But  notwithstanding  this  failure 
to  plead  the  Federal  Act  in  the  answer,  evidence  was  admitted,  over 
plaintiff's  objection,  which  showed  that  the  train  on  which  plaintifC 
was  riding  at  the  time  of  the  injury  was  engaged  in  interstate 
commerce.  After  the  intioduction  of  this  evidence,  the  railroad 
company  insisted  that  the  case  was  governed  by  the  Federal  Act  and 
moved  the  court  for  a  directed  verdict  in  its  favor.  This  request 
having  been  refused,  the  defendant  asked  the  court  to  give  to  the 
jury  in  its  charge  several  applicable  extracts  from  the  Federal 
Statute.  These  requests  were  refused,  the  trial  court  holding  that 
the  state  law  governed  as  to  assumption  of  risk.  A  verdict  for  the 
plaintiff  resulted.  On  a  writ  of  error  from  a  common  pleas  court 
where  the  case  was  tried  to  the  circuit  court,  the  latter  court  held 
that  as  the  plaintiff  was  injured  while  engaged  in  interstate  com- 
merce, the  cause  was  governed  by  the  Federal  Statute  and  the  common 
law  rule  of  assumption  of  risk  applied  and  that  the  defendant 's 
motion  for  a  directed  verdict  should  have  been  granted.  On  appeal 
to  the  Supreme  Court  of  Ohio  the  judgment  of  the  circuit  court  was 
reversed  and  that  of  the  common  pleas  court  was  affirmed.  In 
reversing  the  judgment  of  the  Supreme  Court  of  Ohio,  the  United 


PLEADINGS  279 

S.  F.  &  T.  R.  Co.,  cited  iu  the  notes,  the  plaintiff's 
petition  stated  a  cause  of  action  under  the  statute 
of  the  state,  but  the  evidence  disclosed  that  the 
decedent  was  killed  while  engaged  in  interstate  com- 
merce. The  court  reversed  the  judgment  and  said: 
''It  comes,  then,  to  this:  the  plaintiffs'  petition,  as 
ruled  by  the  state  court,  stated  a  case  under  the  state 
statute.  *  *  *  When  the  evidence  was  adduced 
it  developed  that  the  real  case  was  not  controlled  by 

states  Supreme  Court  held  that  if  a  suit  is  brought  under  a  state 
law  and  the  evidence  shows  that  the  federal  act  is  applicable,  there 
can  be  no  recovery.     The  court  said: 

* '  The  ease  having  been  brought  here  by  writ  of  error,  counsel  for 
the  plaintiff,   Slavin,  insists   that  the  judgment  of  reversal,  without 
opinion,   should  not  be   construed   as  meaning  that  the   State  coui't 
decided    the    Federal    question    adversely   to    the    Company's    claim; 
but    rather    as   holding   that    the    defendant's    failure    to   plead   the 
Employers'  Liability  Act  made  it  improper  to  consider  evidence  that 
the  plaintiff  had  been  engaged  in  interstate  commerce,  and,  hence, 
that  there  was  nothing  properly  in  this  record  to  support  the  con- 
tention  that  the   defendant  had  been  deprived   of   a   Federal  right. 
But   a   controlling   Federal   question   was  necessarily   involved.     For, 
when  the  plaintiff  brought  suit  on  the  State  statute  the  defendant 
was   entitled   to   disprove   liability  under  the  Ohio   Act,  by  showing 
that   the   injury   had   been   inflicted   while    Slavin   was   employed   in 
interstate  business.     And,  if  without  amendment,  the  case  proceeded 
with  the  proof  showing  that  the  right  of  the  plaintiff  and  the  liabiUty 
of  the  defendant  had  to  be  measured  by  the  Federal  statute,  it  was 
error  not  to  apply  and  enforce  the  provisions  of  that  law.     In  this 
respect  the  case  is  much  like  St.  Louis,  etc.,  Ey.  v.  Seale,  229  U.  S. 
156,   161,  where  the  suit  was  brought  under  the  Texas  statute,   but 
the  testimony  showed  that  the  plaintiff  was  injured  while  engaged  in 
interstate  commerce.     The  court  said:    'When  the  evidence  was  ad- 
duced it  developed  that  the  real  case  was  not  controlled  by  the  State 
statute  but  by  the  Federal  statute.     In  short,  the  case  pleaded  was 
not  proved  and  the  case  proved  was  not  pleaded.     In  that  situation 
the    defendant   interposed    the    objection,    grounded   on   the    Federal 
statute,  that  the  plaintiffs  were  not  entitled  to  reco^er  on  the  case 
proved.     We  think  the  objection  was  interposed  in  due  time  and  that 
the    State    court    erred    in    overruling    it.'      The    principle    of    that 


280        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

the  state  statute,  but  by  the  federal  statute.  In 
short,  the  case  pleaded  was  not  proved,  and  the  case 
proved  was  not  pleaded." 

§  161.  Defendant  in  Suit  Under  State  Law  Must 
Specifically  Plead  Federal  Act  to  Defeat  Recovery. — 
On  the  other  hand,  if  the  plaintiff's  petition  states  a 
cause  of  action  under  the  laws  of  the  state  and  his 
evidence  establishes  and  is  in  harmony  with  the  alle- 
gations of  his  petition,  the  fatal  variance  in  plaintiff's 
proof,  which  appeared  in  the  cases  cited  in  the  pre- 
ceding paragraph,  is  non-existent  and  the  defendant 
in  order  to  defeat  a  recovery  under  the  state  law  by 
showing  that  the  case  is  one  arising  under  the  federal 
act,  must  plead  the  facts  showing,  that  the  plaintiff 
at  the  time  of  the  injury,  was  employed  in  interstate 
cormnerce  and  that  the  carrier  was  so  engaged  at 

decision  and  others  like  it  is  not  based  upon  any  technical  rule  of 
pleading  but  is  matter  of  substance,  where,  as  in  the  present  case, 
the  terms  of  the  two  statutes  differ  in  essential  particulars.  Here 
the  Ohio  statute  abolished  the  rule  of  the  common  law  as  to  the 
assumption  of  risks  in  injuries  occasioned  by  defects  in  tracks,  while 
the  Federal  statute  left  that  common  law  rule  in  force,  except  in  those 
instances  where  the  injury  was  due  to  the  defendant's  violation  of 
Federal  statutes,  which — lite  the  Hours  of  Labor  Law  and  the 
Safety  Appliance  Act — were  passed  for  the  protection  of  interstate 
employees.  Seaboard  Air  Line  v.  Horton,  233  U.  S.  492,  503.  In  aU 
other  respects  this  case  is  exactly  within  the  ruling  in  the  case  last 
cited,  where  the  employee's  knowledge  of  the  existence  of  the  defect 
and  the  terms  of  the  State  statute  relied  on  were  substantially  the 
same  as  those  in  the  present  case.  There  the  judgment  of  the  State 
court — applying  the  State  statute — was  reversed  because  it  appeared, 
as  it  does  here,  that  the  plaintiff  had  been  injured  while  engaged  in 
interstate  commerce  and,  consequently,  the  case  should  ha\e  been 
tried  and  determined  according  to  the  Federal  Employers'  Liability 
Act.  The  judgment  of  the  Supreme  Court  of  Ohio  is  reversed  and 
the  case  remanded  for  further  proceedings  not  inconsistent  with 
this  opinion," 


PLEADINGS  281 

the  same  time.  Unless  such  a  plea  is  made  such 
evidence  is  not  admissible  on  behalf  of  the  defend- 
ant.^^ Where  the  defendant  files  such  a  plea  in  an 
amended  answer  after  the  evidence  was  all  in  it  was 
held  not  to  be  in  abuse  of  discretion  for  the  trial 
court  on  motion  of  plaintiff,  to  strike  out  the  amend- 
ment.^^ Cases  holding  that  when  a  widow  is  suing 
in  her  individual  capacity  for  the  death  of  an  inter- 
state employe,  her  want  of  capacity  to  sue  may  be 
raised  at  any  stage  of  the  proceedings  without  the 
point  being  raised  by  answer,  are  not  in  conflict  with 
the  cases  just  cited  for  the  reason  that  the  defeat  or 
want  of  legal  capacity  appears  on  the  face  of  plain- 
tiff's pleadings.^  ^ 

§  162.  When  Amendment  of  Petition  Permissible 
After  Two- Year  Period  of  Limitation. — Where  a 
mother,  the  sole  heir  and  dependent  of  a  deceased 
employe,    a    single    man,    sued    in    her   individual 

43.  lUinois  C.  E.  Co.  v.  Nelson  (C.  C.  A.),  212  Fed.  69;  Bradbury  v. 
Chicago,  E.  I.  &  P.  Ey.  Co.,  149  Iowa  51,  40  L.  E.  A.  (N.  S.)  684n; 
Erie  E.  Co.  v.  Welch,  —  Ohio  — ,  6  N.  C.  C.  A.  77n,  188n,  105  N.  E. 
189;  Fleming  v.  Norfolk  S.  E.  Co.,  160  N.  C.  196,  6  N.  C.  C.  A.  78n, 
229n;  Chicago,  E.  I.  &  P.  Ey.  Co.  v.  McBee,  —  Okla.  — ,  145  Pac.  331; 
Chicago,  E.  I.  &  P.  Ey.  Co.  v.  Eogers,  —  Tex.  Civ.  App.  — ,  150  S.  W. 
281;  Bitondo  v.  New  York,  C.  &  H.  H.  Co.,  163  App.  Div.  (N.  Y.)  823; 
contra,  Gray  v.  Chicago  &  N.  W.  Ey.  Co.,  153  Wis.  636,  4  N.  C.  C.  A, 
225n;  Vandalia  E.  Co.  v.  Stringer,  —  Ind.  — ,  106  N.  E.  865. 

44.  Bradbury  v.  Chicago,  E.  I.  &  P.  E.  Co.,  149  Iowa  51,  40  L.  E. 
A.  (N.  S.)  684n. 

45.  Vaughn  v.  St.  Louis  &  S.  F.  E.  Co.,  177  Mo.  App.  155,  6  N.  C. 
C.  A.  75n,  438,  439n ;  Missouri,  K.  &  T.  Ey.  Co.  v.  Lenahan,  39  Okla. 
283,  6  N.  C.  C.  A.  75n,  78n,  437n;  Dungan  v.  St.  Louis  &  S.  F.  E.  Co., 
178  Mo.  App.  164,  6  N.  C.  C.  A.  438,  439n;  LaCasse  v.  New  Orleans,  T. 
&  M.  E.  Co.,  —  La.  — ,  6  N.  C.  C  A.  196n,  437n,  64  So.  1012 ;  Southern 
Ey.  Co.  V.  Howerton,  —  Ind.  — ,  101  N.  E.  121;  American  E.  Co.  v. 
Birch,  224  U.  S.  547,  56  L.  Ed.  879;  Cincinnati,  N.  0.  &  T.  P.  Ey.  Co. 
V.  Bonham,  —  Temi.  — ,  171  S.  W.  71. 


282       INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

capacity  and  in  her  first  and  original  petition,  suffi- 
ciently averred  that  his  death  was  caused  by  injuries 
while  the  carrier  was  engaged  and  he  was  employed 
in  interstate  commerce,  but  also  in  her  petition  re- 
ferred to  and  asserted  a  right  to  sue  under  the  laws 
of  Kansas,  an  amendment  of  the  petition  after  the 
two-year  period  of  limitation,  permitting  her  to  sue 
as  administratrix  as  required  by  the  federal  act,  was 
properly  allowed.^*^  In  the  Wulf  case  the  decedent 
was  a  locomotive  fireman  on  a  train  bound  from 
Kansas  into  Oklahoma  and  these  facts,  constituting 
employment  in  interstate  commerce,  appeared  in  the 
original  petition.  Notwithstanding  the  fact  that  the 
plaintiff  erroneously,  under  the  facts  stated  in  her 
petition,  asserted  her  right  to  recover  under  the  state 
laws,  yet  the  court,  when  the  facts  stated  in  her 

46.  Missouri,  K.  &  T.  E.  Co.  v.  Wulf,  226  U.  S.  570,  57  L.  Ed.  355, 
6  N.  C.  C.  A.  230n,  237n,  Ann.  Cas.  1914  B  134n,  affirming  same  case 
in  192  Fed.  919 ;  accord,  Bixler  v.  Pennsylvania  R.  Co.,  201  Fed.  553 ; 
Eeardon  v.  Balaklala  C.  C.  Co.,  193  Fed.  189;  Atlanta,  K.  &  N.  E. 
Co.  V.  Smith,  1  Ga.  App.  162. 

In  an  action  by  a  brakeman  against  a  common  carrier  by  railroad, 
the  cause  was  reversed  on  appeal  because  the  braieman  was  guilty 
of  such  contributory  negligence  as  to  bar  a  recovery.  (Cincinnati, 
N.  O.  &  T.  P.  Ey.  Co.  v.  Goode,  153  Ky.  247.)  On  motion  for  re- 
hearing, the  court  held,  in  view  of  the  fact  that  ,the  evidence  dis- 
closed the  brakeman  was  engaged  in  interstate  commerce  at  the 
time  of  the  injury  and  that  the  remedy  provided  by  the  federal  act 
was  exclusive,  that  the  cause  should  be  reversed  so  the  plaintiff,  if 
he  deemed  it  advisable,  might  amend  his  petition.  (Cincinnati,  N.  O. 
&  T.  P.  Ey.  Co.  v.  Goode,  155  Ky.  153.)  Upon  the  return  of  the 
case  to  the  trial  court,  after  being  so  remanded,  the  plaintiff  filed 
an  amended  petition  setting  out  more  distiuctly  than  he  did  in  his 
original  petition,  facts  sufficient  to  bring  his  case  within  the  scope 
of  the  federal  act.  The  amended  petition  was  filed  more  than  two  years 
from  the  date  of  the  injury.  To  this  petition  the  defendant  filed  an 
answer   in  which  it  pleaded   the   statute  of  limitation  because  the 


PLEADINGS  283 

petition  showed  liability  exclusively  under  the  fed- 
eral act,  would  take  judicial  notice  that  the  state 
law  mentioned  in  the  petition,  was  superseded  by  the 
federal  act  and  that  the  cause  of  action  was  not 
changed  any  more  than  if  the  plaintiff  had  referred 
to  any  other  repeal  statute.  Aside  from  the  capacity 
in  which  she  sued,  there  was  no  substantial  difference 
between  the  original  and  the  amended  petition,  the 
same  state  of  facts  as  to  interstate  commerce  being 
alleged  in  both.  The  change  was  in  form  rather  than 
in  substance  nor  did  the  amended  petition  set  up  any 
different  state  of  facts  as  the  ground  of  action  and 
therefore  the  amended  petition  related  back  to  the 
beginning  of  the  suit.  This  case  has  been  sometimes 
cited  as  authority  for  the  proposition  that  a  petition 
setting  up  no  facts,  showing  the  engagement  of  the 
carrier  and  the  employment  by  it  of  the  servant  in 

injury  occurred  in  March,  1910,  more  than  two  years  before  the  filing 
of  the  amended  petition  in  November,  1913.  In  sustaining  the 
right  of  the  plaintiff  to  so  amend  the  petition,  the  Kentucky  Court 
of  Appeals  said :  '  *  The  original  action  was  brought  within  two 
years  from  the  time  of  the  injury  eomplain.ed  of  and  unless  the 
amended  petition  filed  in  November,  1913,  set  up  some  new  and  dis- 
tinct cause  of  action  it  should  be  treated  as  a  part  of  the  original 
petition  and  relate  back  to  the  date  when  it  was  filed.  An  inspection 
of  these  pleadings  shows  very  clearly  that  the  amended  petition  did 
not  set  up  or  attempt  to  set  up  any  new  cause  of  action  or  any 
cause  of  action  that  was  not  relied  on  in  the  original  petition.  In 
fact,  the  original  petition  stated  a  good  cause  of  action  under  the 
federal  statute;  but  both  parties  after  the  filing  of  the  petition, 
seemed  to  treat  the  case  as  falling  under  the  state  law,  and  it  pro- 
ceeded to  judgment  in  that  way.  The  amended  petition  merely  re- 
iterates the  averments  of  the  original  petition,  setting  out  perhaps 
more  fully  than  it  did  the  facts  showing  that  the  cause  of  action 
arose  under  the  federal  statute.  This  being  so,  the  trial  court  did 
not  err  in  ignoring  the  plea  of  limitation. ' '  Cincinnati,  N.  O.  & 
T.  P.  E.  Co.  v.  Goode,  —  Ky.  — ,  173  S.  W.  329. 


284        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

interstate  commerce  at  the  time  of  the  injury,  may 
be  amended  even  after  the  two-year  period  of  limita- 
tion provided  by  the  federal  act,  so  as  to  show  a 
cause  of  action  under  the  national  statute.  The 
decision,  however,  does  not  go  to  that  length  because 
the  court  found  that  the  original  petition  sufficiently 
averred  facts  showing  employment  in  interstate  com- 
merce, the  sole  change  being  the  capacity  in  which 
the  plaintiff  sued.  The  mere  fact  that  the  plaintiff 
referred  to  the  Kansas  statute  in  her  petition  as 
authorizing  the  recovery,  the  court  treated  as  nuga- 
tory in  view  of  the  other  facts  showing  liability 
under  the  national  act.  A  former  casC*"^  in  which 
the  plaintiff  sued  under  the  common  law  and  sought 
after  the  limitation  period  to  amend  by  basing  his 
cause  of  action  on  the  statute  of  Kansas,  was  dis- 
tinguished, in  that  the  ground  of  recovery  was 
changed,  and  the  court,  the  suit  being  tried  on  re- 
moval in  a  federal  court  in  Missouri,  would  not  take 
judicial  notice  of  a  Kansas  statute.^^ 

47.  Union  P.  R.  Co.  v.  Wyler,  158  U.  S.  285,  39  L.  Ed.  983. 

48.  After  the  decision  of  the  Texas  CivU  Court  of  Appeals  was 
reversed  in  the  United  States  Supreme  Court  in  St.  Louis,  S.  F.  &  T. 
Ry.  Co.  V.  Seale  (229  U.  S.  156,  57  L.  Ed.  1129,  3  N.  C.  C.  A.  800, 
Ann.  Cas.  1914  C  156),  one  of  the  plaintiffs  in  that  suit,  the  widow  of 
the  decedent,  intermarried  with  one  Smith,  and  after  the  return  of  the 
mandate  from  the  United  States  Supreme  Court,  she  was  appointed 
administratrix  of  his  estate  and  thereafter  upon  motion  she  was  sub- 
stituted as  party  plaintiff  in  lieu  of  the  original  parties  plaintiff. 
She  then  immediately  filed  an  amended  petition,  in  which  she  prose- 
cuted the  action  as  the  personal  representative  of  the  deceased. 
As  administratrix  she  obtained  another  verdict  which  was  affirmed 
on  appeal,  the  court  holding  that  the  amendment  was  proper  even 
after  the  two-year  period  of  limitation.  St.  Louis,  S.  F.  &  T.  Ry.  Co. 
V.  Smith,  171  S.  W.  512,  160  S.  W.  317.  Whether  the  Supreme  Court 
of  the  United  States  will  sustain  such  an  amendment  when  it  decided 


PLEADINGS  285 

§  163.  When  Amendments  After  Limitation  Period 
Not  Allowed. — But  where  an  action  for  wrongful 
death  was  brought  by  deceased's  widow  as  such, 
under  a  state  statute  giving  her  alone  the  right  of 
action,  for  her  sole  benefit,  an  amendment  to  the 
declaration,  changing  the  relation  in  which  she  sues 
from  that  of  widow  to  that  of  administratrix,  for  the 
benefit  of  herself  as  widow  and  her  children,  and 
changing  her  cause  of  action  to  one  under  the  Federal 
Employers'  Liability  Act,  while  permissible,  yet,  if 
made  under  the  limitation  period  under  the  latter 
statute,  does  not  relate  back  to  the  time  of  the  com- 
mencement of  the  original  action  so  as  to  avoid  the 
bar  of  the  statute  of  limitation,  being  in  effect  the 
bringing  of  a  new  action  under  the  federal  statute.^^ 
The  HaJl  case  cited  is  quite  different  from  the  Wulf 
case  for  here  the  widow  was  the  sole  party  in  the 
original  petition;  the  widow  and  children  were  as- 
serting rights  in  the  amended  petition.  Neither  did 
the  original  petition  state  facts  showing  liability 
under  the  national  act.  In  another  case  a  brakeman 
brought  an  action  against  a  railroad  company  which 
stated  a  cause  of  action  under  the  common  law.  The 
injury  occurred  on  February  29,  1904.     Suit  was 

that  the  original  petition  in  the  Seale  case  stated  no  facts  showing 
the  engagement  of  the  company  and  the  employment  of  the  deceased 
in  interstate  commerce  (229  U.  S.  1.  c  158,  57  L.  Ed.  1.  c.  1133)  but 
on  the  other  hand  held  that  the  original  petition  in  the  Wulf  case 
stated  facts  showing  such  to  be  true  (226  U.  S.  1.  c,  575,  57  L.  Ed. 
1.  c.  363)  remains  to  be  seen. 

49.  Hall  V.  Louisville  &  N.  E.  Co.,  157  Fed.  464,  aff  'd  98  C.  C.  A. 
664,  174  Fed.  1021. 


286        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

brought  on  July  1,  1904.    On  January  21,  1909,  the 
plaintiff  asked  leave  to  file  an  amended  petition  set- 
ting up  a  cause  of  action  under  the  Federal  Safety 
Appliance  Act  specifically  under  the  section  as  to 
automatic    couplers.     Defendant    objected    to    the 
allowance  of  the  amendment  on  the  ground  that  it 
introduced  a  new  cause  of  action  which  was  barred 
by  the  statute  of  limitation.    The  court  sustained  this 
assignment  and  held  that  the  amended  answer  set  up 
a  new  cause  of  action  and  was  improperly  allowed 
by  the  trial  court  and  is  barred  by  the  statute  of 
limitation.    The  court  in  passing  upon  the  propriety 
of  the  amendment  said:  "But,  it  will  be  observed, 
in  the  amendment  there  was  a  departure,  not  one 
from  the  facts  as  allowed  in  the  original  statement, 
but  also  from  the  law  as  applicable  to  the  facts  in 
the  original  statement.    In  other  words,  there  was  a 
departure,  not  one  from  fact  to  fact,  but  from  law 
to  law.    *     *    *    The  original  statement,  it  is  true, 
averred  the  injuries  of  the  plaintiff  and  the  alleged 
negligence  of  the   defendant  by  which  they  were 
caused  but  there  was  no  intimation  in  the  statement 
that  the  carrier  was  engaged  in  interstate  commerce 
or  that  the  defendant's  cars  were  equipped  with 
couplers  in  violation  of  the  Act  of  Congress.    Proof 
of  the  existence  of  these  two  additional  facts  was 
required  to  sustain  the  action  as  amended,  and  this 
is  one  of  the  decisions  in  determining  whether  the 
amendment  introduced  a  different  cause  of  action. 
It  is  apparent  that  without  this  amendment  the  Act 
of  Congress  could  have  had  no  place  in  the  case,  and 


PLEADINGS  287 

could  not  liave  been  invoked  to  deprive  the  company 
of  its  defense  that  the  plaintiff  assumed  the  risks 
or  dangers  of  his  employment. ' '  ^" 

50.  Allen  v.  Tuscorora  V.  R.  Co.,  229  Pa.  97,  30  L.  R.  A.  (N.  S.) 
109611,  140  Am.  St.  Rep.  714.  The  court  in  its  decision  followed 
Union  P.  Ry.  Co.  v.  Wyler,  158  U.  S.  285,  39  L.  Ed.  983. 


CHAPTER  XII 

EVIDENCE  UNDER  FEDERAL  ACT 

§  164.  Eules  of  Evidence  Governed  by  State  Law. 

§  165.  Law   of   Foriun   Determines   Whether   Widow   or   Other  Bene- 
ficiaries May  Testify. 
§  166.  State   Law   Not   Applicable   in   Passing   on   Demurrer   to   the 

Evidence. 
§  167.  Eecord  Evidence  of  Interstate  Shipments — Statutory  Provision 

and  Order  of  Interstate  Commerce  Commission. 
§  168.  Method   of    Proving   When    Train   and   Switching    Crews   Are 

Engaged  in  Interstate  Commerce. 
§  169.  Method    of    Proving    When    Other    EaUroad    Employes    Are 

Engaged  in  Interstate  Commerce. 
§  170.  Evidence  Held  Sufficient  to   Show   That  Train  Was  Carrying 

Interstate  Commerce. 
§  171.  Evidence  Held  Not  Sufficient  to  Show  That  Train  Was  Carrying 

Interstate  Commerce. 

§  164.  Rules  of  Evidence  Governed  by  State  Law. 
— In  all  actions  against  common  carriers  by  railroads 
under  the  Federal  Employers'  Liability  Act,  prose- 
cuted in  state  courts,  the  rules  of  evidence  enforced 
in  the  federal  courts  do  not  control,  for  the  reason 
that  the  law  of  evidence  is  a  part  of  the  law  of 
procedure  and  the  procedure  is  always  governed  by 
the  law  of  the.forum.  The  Supreme  Court  of  Arkan- 
sas, in  the  case  cited  in  the  notes,  stated  the  rule  as 
follows :  "  It  is  a  well-established  rule  that,  in  actions 
in  a  state  court  to  enforce  rights  given  by  a  federal 
statute,  the  rules  of  evidence  of  the  state  court  must 
control  unless  otherwise  provided  by  the  federal 
law."i 

1.  Kansas  City  S.  Ey.  Co.  v.  Leslie,  —  Ark.  — ,  6  N.  C.  C.  A.  446, 
447n,  453,  454n,  167  S.  W.  83. 

288 


EVIDENCE  289 

§  165.  Law  of  Forum  Determines  Whether  Widow 
or  Other  Beneficiaries  May  Testify.— Whether  a 
widow  or  other  beneficiary  named  in  either  one  of 
the  three  classes  under  the  federal  statute,  may 
testify  in  any  action  brought  by  an  administrator  in 
their  behalf,  is  to  be  determined  by  the  law  of  th*; 
state  where  the  action  is  pending.  Applying  this 
rule,  the  Supreme  Court  of  North  Carolina  held  that 
a  mother  of  a  deceased  employe,  killed  while  em- 
ployed in  interstate  commerce,  was  a  competent  wit- 
ness in  an  action  brought  under  the  federal  act  by 
an  administrator,  for  his  death.- 

§166.  State  Law  Not  Applicable  in  Passing  on 
Demurrer  to  the  Evidence. — In  all  actions  prosecuted 
under  the  federal  act  in  state  courts,  the  question 
whether  there  has  been  sufficient  evidence  intro- 
duced to  justify  the  trial  court  in  submitting  the  case 
to  the  jury  is  not  to  be  detei-mined  by  the  laws  of 
the  state  nor  the  decisions  of  its  courts,  but  by  the 
controlling  decisions  of  the  national  courts,  as  such 
a  question  is  not  one  of  procedure  but  one  which 
involves  the  substantive  rights  of  the  parties.^ 

§  167.  Record  Evidence  of  Interstate  Shipments- 
Statutory  Provision  and  Order  of  Interstate  Com- 
merce Commission. — The  Act  of  Congress  regulating 
interstate  commerce  empowers  the  Interstate  Com- 
merce Commission  to  prescribe  the  forms  of  all ' '  ac- 
countings, records  and  memoranda  of  the  movement 
of  traffic"  made  by  common  carriers  engaged  in 

2.  Ii-vin  V.  Southern  Ey.  Co.,  —  N.  C.  — ,  80  S.  E.  78. 

3.  St.  Louis,  I.  M.  &  S.  Ey.  Co.  v.  MeWhirter,  229  U.  S.  265,  57  L. 
Ed.  1179,  reversing  same  case  reported  in  14:5  Ky.  427. 

Roberts  Liabilities — 19 


290        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

interstate  commerce.^  The  statute  also  provides 
that  any  carrier  ''who  shall  wilfully  neglect  or  fail 
to  make  full,  true  and  correct  entries  in  such  ac- 
countings, records  or  memoranda  of  all  facts  and 
transactions  appertaining  to  the  carrier's  business" 
shall  be  deemed  guilty  of  a  crime.  It  is  further  pro- 
vided in  the  statute  that  the  Interstate  Commerce 
Commission  may  issue  orders  specifying  such  oper- 
ating records,  books,  blanks,  tickets,  stubs  or  docu- 
ments of  carriers  which  may,  after  a  reasonable 
time,  be  destroyed,  and  prescribe  the  length  of  time 
such  books,  papers  or  documents  shall  be  preserved. 
Pursuant  to  the  authority  given  in  this  statute,  the 
Interstate  Commerce  Commission  has  issued  and 
formulated  a  general  order  regulating  the  destruc- 
tion of  all  records  on  steam  roads.^ 

§  168.  Method  of  Proving  When  Train  and  Switch- 
ing Crews  are  Engaged  in  Interstate  Commerce. — 
While  courts  have  without  objection  permitted  oral 
e\ddence  to  show  that  trains  contained  interstate 
shipments,  yet  in  view  of  the  fact  that  a  permanent 
record  of  such  transactions  are  required  by  statute 
to  be  made  and  preserved  by  all  common  carriers 
engaged  in  interstate  commerce,  they  may  hold,  even 
in  actions  under  the  Federal  Employers'  Liability 
Act,  if  objection  is  made,  that  oral  evidence  is  not 

4.  Act  June  29,  1906,  c.  3591,  §  7,  34  Stat.  593 ;  Act,  Feb.  25,  1909, 
c.  193,  35  Stat.  649. 

5.  Order  regidating  destruction  of  records  of  steam  roads  in  accord- 
ance with  §  20  of  the  Act  to  regulate  commerce  issued  on  the  first 
day  of  June,  1914,  and  effective  on  the  first  day  of  July,  1914, 
superseding  and  cancelling  orders  dated  June  10,  1910,  June  8,  1911, 
and  October  7,  1912. 


EVIDENCE  291 

admissible  on  the  ground  that  it  is  not  the  best 
evidence.*^  As  all  members  of  train  crews  and  switch- 
ing crews  are  not  engaged  in  interstate  commerce 
unless  there  are  interstate  shipments  in  the  train,  or 
''drags"  in  switching  yards,  upon  which  they  are 
employed,  plaintiffs  in  actions  under  the  federal  act 
must  therefore  produce  evidence  showing  such  em- 
ployment. Assuming  that  oral  proof  is  admissible, 
yet  often  such  evidence  is  not  available  and  the  plain- 
tiff", or  the  defendant  in  seeking  to  show  that  the 
federal  act  does  not  apply,  must  produce  some  record 
showing  that  there  were  interstate  shipments  on  the 
train.  All  railroad  companies  keep  and  maintain  a 
multitude  of  records  concerning  the  transportation 
of  all  freight  and  passengers.  They  are  required  by 
law  to  be  faithfully  and  accurately  kept  and  most 
of  them  must  be  preserved  for  six  years  under  the 
order  of  the  Interstate  Commerce  Commission.  Re- 
lating to  the  transportation  of  freight  and  pas- 
sengers, the  records  usually  kept  are  the  dispatcher's 
records,  records  of  hours  of  service,  conductor's 
train  and  car  reports,  commonly  known  as  wheel 
reports,  freight  waybills,  bills  of  lading  and  ticket 
and  baggage  records.  Most  of  these  records  are  kept 
in  the  office  of  the  superintendent  at  division  points. 
The  records  of  the  dispatchers  are  commonly  known 

6.  Pfeiffer  v.  Oregon-Washington  E.  &  N.  Co.,  —  Ore.  — ,  144 
Pac.  762,  7  N.  C.  C.  A.  685. 

Notwithstanding  a  raih-oad  company  keei)s  records  showing  the 
origin  and  destination  of  every  loaded  or  empty  car  in  a  train,  yet 
it  is  competent  for  a  conductor  to  testify  orally  that  some  of  the 
cars  in  the  train  were  destined  to  points  beyond  the  state.  Devine 
V.  Chicago,  E.  I.  &  P.  E.  Co.,  —  lU.  — ,  107  N.  E.  595. 


292        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

as  train  sheets  in  which  are  kept  a  daily  record  show- 
ing the  movement  of  all  trains  over  the  division, 
time  of  departure  and  arrival  at  each  station,  num- 
ber of  train,  names  of  engineer  and  conductor  with 
number  of  cars  in  the  train.    Eegisters  are  also  kept 
in  which  entries  are  made  by  all  train  employes 
showing  number  of  hours  the  employes  were  on  duty. 
These  registers  show  the  train  upon  which  the  em- 
ploye  worked,   the  number   of  cars   on   the  train, 
whether  loaded  or  empty,  and  between  what  points 
the  train  was  operated.     On  all  trips  between  ter- 
minals conductors  are  generally  required  to  make  out 
and  deliver  at  destination  points  wheel  reports  which 
show  the  date  the  trains  moved,  the  number  of  the 
trains,  the  initials  and  number  of  cars,  the  initial 
and  destination  point  on  each  car  over  the  division 
and  the  mileage  of  the  cars  and  train.    These  wheel 
reports  are  required  to  be  kept  for  three  years  if 
transcribed  into  other  records  and  if  not  so  trans- 
scribed,  for  six  years.     Every  common  carrier  en- 
gaged in  interstate  commerce  is  also  required  to 
issue  a  receipt  or  bill  of  lading  for  all  shipments. 
The  originals  of  these  contracts  are  usually  delivered 
to  the  shipper  and  duplicate  copies  are  retained  by 
the  carrier.    In  addition  to  these  bills  of  lading  the 
carrier  makes  out  for  each  shipment  a  waybill  which 
waybill  accompanies  the  car  from  point  of  origin  to 
point  of  destination  and  is  handled  successively  by 
the  conductors  of  the  trains  in  which  the  shipment 
is  carried  and  usually  by  foremen  of  the  switching 
crews  at  tei-minal  points.    Carbon  copies  of  all  such 
waybills   are  kept  at  the  point  of  origin.     There 


EVIDENCE  293 

are  three  classes  of  waybills,  local  waybills,  that  is, 
where  the  shipment  is  between  two  points  on  the 
same  line,  interline  waybills  where  cars  are  trans- 
ported by  more  than  one  carrier  and  company  freight 
waybills  which  denotes  that  merchandise  carried 
belongs  to  the  railroad  company.  In  addition  to 
these  there  are  baggage  records  showing  the  initial 
and  destination  point  of  all  baggage  shipped.  These 
are  required  to  be  retained  for  a  period  of  three 
years.  All  these  records  may  be  obtained  by 
subpoena  duces  tecum  served  upon  the  officers  of  the 
company  in  charge  of  the  records  called  for  in  the 
subpoena. 

§  169.  Method  of  Proving  When  Other  Railroad 
Employes  are  Engaged  in  Interstate  Commerce. — 
Proof  that  the  line  upon  which  they  are  working,  is 
used  by  the  railroad  company  indiscriminately  in 
moving  both  interstate  and  intrastate  commerce,  is 
sufficient  to  show  that  such  employes  as  linemen, 
signalmen,  bridge  carpenters,  section  men  and  simi- 
lar employes  are  employed  in  interstate  commerce. 
In  the  same  way,  to  show  that  car  repairers  and 
engine  repairers  are  engaged  in  interstate  commerce, 
it  is  sufficient  for  the  evidence  to  disclose  that  the 
car  or  the  engine  upon  which  they  were  at  work  when 
injured,  was  used  indiscriminately  in  moving  both 
kinds  of  commerce. 

§  170.  Evidence  Held  Sufficient  to  Show  That  Train 
was  Carrying  Interstate  Commerce. — In  an  action 
under  the  federal  act  tlie  plaintiff  testified  that  he 
was  an  engineer  and  had  been  hauling  certain  pas- 
senger trains,  calling  them  by  number,  for  several 


294        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

years,  one  running  east  and  the  other  west.  He 
spoke  of  them  as  through  passenger  trains.  Another 
witness  testified  that  the  plaintiff  was  an  engineer 
for  the  defendant,  running  on  the  ''Black  Hills  Divi- 
sion;" such  division,  he  said,  being  west  of  Long 
Pine,  with  headquarters  at  Chadron.  The  action 
was  being  prosecuted  in  the  state  courts  of  Nebraska 
and  the  question  was  presented  to  the  court  whether 
this  evidence  was  sufficient  to  show  that  the  plaintiff 
was  an  engineer  on  an  interstate  train.  The  court 
said :  * '  While  the  evidence  of  the  interstate  character 
of  trains,  three  and  six,  is  not  as  clear  and  satisfac- 
tory as  it  could  and  should  have  been  made,  we  think 
it  was  sufficient  to  take  the  case  to  the  jury  on  that 
point.  *  *  *  "WTe  take  judicial  notice  of  the  fact 
that  the  Black  Hills  are  in  South  Dakota.  We  think 
we  may  also  take  judicial  notice  of  the  fact,  well 
known  to  every  citizen  of  even  ordinaiy  intelligence 
in  the  State  of  Nebraska,  that  the  west  terminus  of 
defendant's  road,  which  runs  through  Long  Pine  is 
in  the  Black  Hills.  With  these  facts  established,  and 
the  further  fact  established  by  the  evidence  that 
Long  Pine  is  the  division  point  on  the  Black  Hills 
division,  of  which  Chadron  is  the  headquarters,  the 
testimony  of  plaintiff  that  trains  three  and  six  were 
through  trains,  meant  that  they  were  trains  running 
through  the  Black  Hills  Division,  which  would  be 
from  Long  Pine  to  the  Black  Hills.  Being  such 
trains,  they  were  interstate  trains,  engaged  in  inter- 
state business."^    In  an  action  prosecuted  in  the  state 

7.  Bower  v.  Chicago  &  N.  W.  E.  Co.,  —  Neb.  — ,  6  N.  C.  C.  A. 
213n,  148  N.  W.  145. 


EVIDENCE  295 

courts  of  Texas  for  the  death  of  an  engineer  who  was 
killed  while  operating  a  train  between  two  points  in 
the  State  of  Arizona,  the  plaintiff  introduced  testi- 
mony that  the  train  on  which  the  deceased  was  an 
engineer,  consisted  of  fifty  cars,  most  of  them  being 
loaded  with  oil  and  lumber ;  that  the  defendant 's  line 
ran  from  California  through  Arizona  and  New 
Mexico ;  that  most  of  the  lumber  and  oil  shipped  by 
the  defendant  from  the  west  came  from  California. 
In  connection  with  this  testimony,  one  of  defendant's 
officers  testified  that  if  fifty  cars  were  going  east  on 
the  track  where  the  engineer  was  killed,  it  was  quite 
likely  that  the  greater  portion  of  them  came  from 
California.  The  court  held  that  the  evidence  was 
sufficient  to  submit  the  case  to  the  jury  as  to  whether 
the  decedent  was  engaged  in  interstate  commerce  at 
the  time  of  the  accident.^ 

§  171.  Evidence  Held  Not  Sufficient  to  Show  That 
Train  was  Carrying  Interstate  Commerce. — Testi- 
mony is  an  employe 's  action  against  common  carrier 
by  railroad  under  the  federal  statute,  who  was  in- 

8.  Southern  P.  Co.  v.  Vaughn,  —  Tex.  Civ.  App.  — ,  165  S.  W. 
885,  7  N.  C.  C.  A.  622. 

A  switching  foreman  was  employed  in  making  up  a  train  in  a  rail- 
road yard  at  Oelwein,  Iowa.  The  train  was  destined  to  a  point  in 
Minnesota  and  some  of  the  cars  were  to  be  set  out  at  stations  in 
Iowa.  Some  of  the  cars  destined  for  points  in  Iowa  originated  in 
Iowa  and  some  came  from  points  in  Illinois.  Some  of  the  cars  des- 
tined to  Minnesota  originated  in  Iowa  and  some  came  from 
Illinois.  All  these  cars,  both  intrastate  and  interstate,  were  being 
switched  into  the  train  at  the  time  the  foreman  was  killed  while  en- 
gaged in  such  work.  The  court  held  that  these  facts  were  sufficient 
to  show  that  the  foreman  was  engaged  in  interstate  commerce  as 
a  matter  of  law.  Crandall  v.  Chicago  &  G.  W.  E.  Co.,  —  Minn.  — , 
150  N.  W.  165. 


296        INJUEIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

jured  while  on  a  train  running  between  two  points 
in  the  same  state,  that  it  was  customary  for  train 
men  to  mark  on  cars  the  number  or  the  name  of  the 
station  to  which  they  were  destined,  that  one  of  the 
cars  had  marked  on  it  with  chalk  the  name  of  a  town 
in  an  adjoining  state  on  the  defendant's  line  of  rail- 
way was  not  sufficient  to  show  that  the  car  was  being 
moved  from  a  point"  in  one  state  to  a  point  in  an- 
other.^   Discussing  the  sufficiency  of  such  evidence 

9.  Barker  v.  Kansas  City,  M.  &  O.  Ey.  Co.,  —  Kan.  — ,  88  Kan. 
767,  129  Pac.  115L 

The  Supreme  Court  of  Kansas  on  the  second  appeal  in  the  case 
of  Barker  v.  Kansas  City,  M.  &  O.  Ey.  Co.  (—  Kan.  — ,  146  Pac. 
358,  decided  Feb.  6,  1915),  held  that  a  fireman  on  a  switch  engine 
hauling  cars  of  company  coal  between  two  points  in  the  same  state, 
which  was  to  be  used  later  in  firing  engines  pulling  interstate  trains 
was  not  engaged  in  interstate  commerce.  This  decision  seems  to  be 
in  conflict  with  cases  decided  by  other  courts  (§37,  supra).  In 
holding  that  the  fireman  was  not  engaged  in  interstate  commerce, 
the  court  on  the  second  appeal,  said:  "The  plaintiff  was  the  fire- 
man of  a  switch  engine.  The  crew  was  ordered  to  take  the  engine 
from  Altus,  Oklahoma,  where  it  was  in  use,  to  Clinton,  Oklahoma, 
to  have  some  work  done  upon  it.  The  day  following,  on  the  return 
trip  from  Clinton  to  Altus,  the  derailment  occurred  which  caused 
the  plaintiff's  injuries,  and  at  this  time  the  train  consisted,  besides 
the  engine,  of  one  water  car  and  nine  cars  loaded  with  coal.  The 
defendant  concedes  that  it  was  engaged  generally  in  the  business 
of  transporting  interstate  commerce  on  its  line  of  railway  between 
Altus,  Oklahoma,  and  Wichita,  Kansas,  but  denies  that  in  hauling 
the  coal  or  train  in  question  it  was  transporting  interstate  com- 
merce. Stated  in  another  way,  the  contention  is  that  the  work 
plaintiff  was  doing  at  the  time  of  the  injury  had  no  real  and  sub- 
stantial connection  with  interstate  commerce.  On  the  second  trial 
the  jury  found  that  the  destination  of  the  switch  engine  and  train 
at  the  time  the  injury  occurred  was  Altus,  Oklahoma;  that  the  des- 
tination of  the  water  car  was  Dill  City,  Oklahoma;  that  the  train 
started  from  Clinton,  Oklahoma;  that  the  origin  of  the  nine  cars 
of  coal  was  McCurtain,  Oklahoma,  and  their  destination,  Altus, 
Oklahoma;  consigned  to  N.  J.  O'Brien,  Vice  President  of  the  Kan- 
sas City,  M.   &   O.  Ey.  Co.  of  Texas,  for  use  on  engines  running 


EVIDENCE  297 

the  court,  in  the  case  cited  in  the  notes,  said:  ''But, 
assuming  that  at  some  time  not  shown  and,  by  some 
person  unknown,  these  words  were  upon  the  car  in 
question,  it  could  hardly  be  said  that  the  natural, 
fair  and  reasonable  inference  to  be  drawn  therefrom 
is  that  at  the  time  in  question  this  car  was  actually 
in  process  of  transportation  to  a  point  in  another 
state,  and  especially  so  when  this  was  made  the  vital 
and  determining  question  in  the  case."    Evidence 

south  of  Altus  into  Texas,  and  for  engines  running  north  into 
Oklahoma.  Plaintiff  testified  that  they  were  taking  the  coal  to 
Altus  for  use  on  engines  running  north  into  Oklahoma  and  south 
into  Texas;  that  there  was  a  coal  yard  at  Altus  kept  by  the  com- 
pany; that  coal  of  this  kind  taken  to  Altus  would  be  scooped  out 
of  the  cars  onto  the  tenders  of  the  engines.  The  decisions  as  to 
what  will  constitute  interstate  commerce  in  a  case  like  this  were 
quite  fully  reviewed  in  a  former  opinion  (88  Kans.  767,  129  Pac. 
1151,  43  L.  E.  A.  (N.  S.)  1121),  and  it  will  not  be  necessary  to 
refer  to  them  at  length  here.  The  findings  in  the  present  case  are 
conclusive,  and  show  that  the  movement  of  the  coal  from  McCurtain 
to  a  consignee  at  Altus,  Oklahoma,  was  intrastate.  Of  course,  cases 
where  the  intention  of  the  shipper  when  the  property  was  first 
started  in  transit  was  to  forward  it  to  a  foreign  destination  have 
no  application  to  the  facts  of  the  present  case.  The  cars  were  con- 
signed to  Altus,  Oklahoma,  and  there  the  shipment  ended.  The  most 
that  can  be  said  is  that  the  plaintiff  was  handling  coal  which  at  a 
later  date  might  become  a  part  of  an  instrumentality  used  in  the 
transportation  of  interstate  commerce.  But  this  fact  alone  could 
not  make  him  an  employe  engaged  in  interstate  commerce.  The 
several  cars  of  coal  being  transported  at  the  time  plaintiff  received 
liis  injuries  were  to  be  unloaded  at  Altus,  their  bulk  broken  and 
some  portions  thereof  afterwards  were  to  be  used  for  fuel  on  engines 
running  into  other  states.  The  situation  would  be  no  different  if, 
instead  of  coal,  the  shipment  had  consisted  of  articles  intended  to  be 
used  in  the  repair  of  a  locomotive  running  from  Altus  into  Texas. 
In  such  a  case  the  mere  fact  that  the  consignee  intended  to  attach 
articles  to  a  locomotive  engaged  in  interstate  commerce  would  not 
make  the  shipment  between  Clinton,  Oklahoma,  and  Altus,  Oklahoma, 
interstate  in  character. ' '  Barker  v.  Kansas  City,  M.  &  0.  Ry.  Co., 
—  Kan.  — ,  146  Pac.  358. 


298        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

that  an  employe  was  a  watchman  on  an  engine  pull- 
ing a  train  between  two  points  in  the  same  state,  was 
held  not  to  be  sufficient  to  show  that  the  watchman 
while  so  engaged,  was  employed  in  interstate  com- 
merce, as  the  court  will  not  take  judicial  notice  that 
a  railroad  is  engaged  in  interstate  commerce.^*'  In 
the  case  cited  the  court  said :  ' '  While  this  court  may 
properly,  in  certain  cases,  take  judicial  notice  of  the 
fact  that  anyone  of  the  many  great  trunk  lines  of 
railway  extending  through  the  various  states  is  en- 
gaged in  interstate  commerce,  yet  the  fact  is  equally 
as  notorious  and  as  much  the  subject  of  judicial 
notices  that  every  such  railway  is  also  engaged  in 
intrastate  traffic;  and  clearly  it  is  not  a  matter  of 
such  general  knowledge  as  to  dispense  with  proof 
that  any  specific  portion  of  the  equipment  or  any 
particular  employe  of  such  railway  is  engaged  in 
interstate,  rather  than  intrastate  commerce  at  any 
precise  time  or  place.  The  only  evidence  in  this  case 
as  to  the  character  of  commerce  in  which  defendant 
and  deceased  were  engaged,  is  that  the  engine  which 
was  being  watched  by,  and  exploded  and  caused 
the  death  of,  the  said  John  M.  McBee  was 
used  in  hauling  a  passenger  train  between  points  in 
this  state. ' '  That  the  duties  of  a  brakeman  working 
for  a  common  carrier  by  railroad  generally  consist- 
ing in  assisting  in  the  movement  of  cars  containing 
both  intrastate  and  interstate  commerce,  is  not 
sufficient  to  create  a  jury  issue  on  the  question  as  to 
whether  he  was  employed  in  interstate  commerce, 
while  assisting  in  shifting  cars  at  the  time  of  the 

10.  Chicago,  K.  I.  &  P.  Ey.  Co.  v.  McBee,  —  Okla.  — ,  145  Pac.  331. 


EVIDENCE  299 

accident,  the  evidence  being  silent  as  to  the  character 
of  freight  with  which  the  cars  on  which  he  was  work- 
ing at  the  time  of  the  accident,  were  loaded,  what 
disposition  had  been  made  of  the  cars  after  their 
arrival  and  what  kind  of  shipment,  if  any,  they  con- 
tained, and  their  destination.^^ 

11.  Hench  v.  Pennsylvania  E.  Co.,  —  Pa.  — ,  91  Atl.  1056. 


CHAPTER  XIII 

MATTERS  OF  PRACTICE  UNDER  FEDERAL 

ACT 

§  172.  At  What  State  of  Proceedings,  Motion  to  Elect  Should  Be 
Sustained — Practical  Considerations. 

§  173.  Motions  to  Elect  Under  Iowa  Statute  in  Actions  Under  Federal 
Act. 

§  174.  Instances  Where  Motion  to  Elect  Should  Have  Been  Sus- 
tained Before  Trial. 

§  175.  Widow  Suing  in  Her  Own  Name  in  One  Suit  and  as  Admin- 
istratrix in  Another,  Cannot  Be  Compelled  to  Elect. 

§  176.  Verdicts  by  Less  Than  Twelve  Jurors,  When  Permissible  Under 
State  Law,  Valid  in  Actions  Under  Federal  Statute. 

§  177.  When  Suit  Under  State  Law  Is  Ees  Adjudicata. 

§  178.  Errors  in  Actions  Under  Federal  Act  Held  Harmless  on  Appeal. 

§  179.  Plaintiff  in  Action  Under  Federal  Act  May  Sue  as  a  Poor 
Person  in  United  States  Courts,  When. 

§  172.  At  What  Stage  of  Proceedings,  Motion  to 
Elect  Should  Be  Sustained — Practical  Considera- 
tions.— When  the  plaintiff  pleads  a  cause  of  action 
under  the  state  law  in  one  count  and  under  the  fed- 
eral law  in  another  count,  whether  a  motion 
to  elect  should  be  sustained  before  the  trial,  or  at 
the  close  of  the  plaintiff's  evidence,  or  upon 
the  conclusion  of  all  the  evidence  introduced,  or 
should  be  denied  altogether,  presents  some  ques- 
tions of  difficulty  to  trial  courts.  Counsel  rep- 
resenting railroads  have  often  insisted  with  some 
show  of  reason  that  since  the  plaintiff  has  al- 
leged facts  in  his  petition  showing  the  federal  act 
applicable,  the  remedy  therein  provided  is  exclusive 

300 


PRACTICE   UNDER   FEDERAL   ACT  301 

and  therefore  a  motion  to  elect  should  be  sustained 
before  proceeding  to  trial.  Another  reason  advanced 
for  such  action  by  trial  courts  is,  that  the  defenses 
under  the  two  laws  are  sometimes  quite  dissimilar 
so  that  if  compelled  to  go  to  trial  under  both  counts, 
a  hardship  will  result.  But,  on  the  other  hand,  as 
the  plaintiff  is  permitted  to  plead  the  two  laws  alter- 
natively he  ought  to  be  permitted  to  have  some  of 
the  practical  benefits  resulting  from  such  a  rule.  To 
force  him  to  elect  before  the  trial,  would  practically 
be  no  benefit  to  him  as  the  main  purpose  of  stating 
a  case  alternatively  is  to  have  a  pleading  to  fit  the 
proof,  whatever  it  might  be.  Sometimes  the  true 
facts  as  to  such  matters  are  not  in  the  possession 
of  the  plaintiff  while  the  defendant  has  the  absolute 
means  of  knowing  whether  a  train,  for  instance,  has 
intrastate  shipments  or  interstate  shipments.  It 
may  be  that  under  all  the  facts  after  the  evidence  is 
in,  it  is  a  doubtful  question  as  to  what  kind  of  com- 
merce the  plaintiff  was  employed  in,  that  is,  the  facts 
may  be  such  that  different  conclusions  may  be  drawn 
therefrom  by  reasonable  men.  For  instance,  a  ques- 
tion of  fact  might  arise  as  to  whether  a  train  or  a 
''drag"  on  which  an  employe  was  working,  con- 
tained interstate  shipments,  some  witnesses  denying 
and  others  affirming  that  to  be  true.  In  such  a  con- 
tingency the  question  whether  the  plaintiff  was 
engaged  in  interstate  or  intrastate  commerce  is  not 
a  question  of  law  for  the  court  but  a  question  of  fact 
to  be  submitted  to  the  jury  under  proper  instruc- 
tions ^  and  it  would  be  an  injustice  to  the  plaintiff  to 

1.  North  Carolina  E.  Co.  v.  Zachary,  232  U.  S.  248,  58  L.  Ed.  591, 


302        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROiiDS 

require  him  to  elect  on  which  cause  of  action  he 
would  submit  his  case,  even  at  the  close  of  all  the 
evidence.  On  the  other  hand,  it  may  be  that  the 
facts  stated  in  the  petition  as  to  such  employment, 
are  such  that  the  court  can  determine  the  question 
as  a  matter  of  law  or  if  at  the  close  of  the  plaintiff's 
evidence,  or  at  the  close  of  all  the  evidence  in  the 
case,  it  appears  as  a  matter  of  law  that  the  plaintiff 
was  employed  in  either  one  or  the  other  kind  of 
commerce,  the  trial  court  should  then  sustain  a 
motion  to  elect  if  presented.  No  hard  and  fast  rule 
can  be  laid  down  as  to  when  a  motion  to  elect  should 
be  sustained.  Trial  courts  should  take  into  con- 
sideration the  rights  and  difficulties  of  both  parties, 
and  rule,  without  unnecessarily  placing  either  party 
at  a  disadvantage  in  enforcing  or  protecting  his 
rights. 

§  173.  Motions  to  Elect  Under  Iowa  Statute  in 
Actions  Under  Federal  Act. — The  question  as  to 
when  a  motion  to  elect  should  be  sustained,  is  a 
question  of  practice  under  the  rules  of  the  courts 

6  N.  C.  C.  A.  194n,  Ann.  Cas.  1914  C  159n,  reversing  the  same  case  on 
other  grounds  reported  in  156  N.  C.  496;  Southern  P.  Co.  v.  Vaughn, 
—  Tex.  Civ.  App.  — ,  165  S.  W.  885;  Atkinson  v.  Bullard,  —  Ga. 
— ,  6  N.  C.  C.  A.  80n,  I83n,  80  S.  E.  220. 

"As  already  indicated,  the  fact  that  plaintiff  was  employed  in 
interstate  commerce  was  established.  Such  a  question  is  usually 
a  mixed  question  of  law  and  fact,  and  often  one  more  of  law  than 
of  fact.  The  facts  involved  in  such  a  question  are  usually  simple. 
When  they  appear  in  the  record  without  material  dispute,  it  de- 
volves upon  the  court  to  construe  the  federal  act  in  its  application 
thereto.  So  in  this  case  sufficient  facts  are  undisputed  to  bring  the 
case  within  the  federal  act.  The  jury,  therefore,  had  nothing  to  do 
with  the  question.  The  court  could  properly  have  given  a  peremptory 
instruction  thereon. ' '  Pelton  v.  Illinois  C.  R.  Co.,  —  la.  — ,  150 
N.  W.  236. 


PRACTICE   UNDER   FEDERAL   ACT  303 

of  the  states  where  the  case  is  pending.  As  to  mat- 
ters of  procedure  nnder  the  federal  act,  the  decisions 
of  the  national  courts  do  not  control  but  the  question 
is  a  matter  governed  by  state  law."  A  statute  of 
the  state  of  Iowa  provides  (§  3545,  Iowa  Code, 
1897):  ''Causes  of  action  of  whatever  kind,  where 
each  may  be  prosecuted  by  the  same  kind  of  proceed- 
ings, if  held  by  the  same  party,  and  against  the  same 
party,  in  the  same  right,  and  if  action  on  all  may  be 
brought  and  tried  in  that  county,  may  be  joined  in 
the  same  petition;  but  the  court  may  direct  all  or  any 
portion  of  the  issues  joined  to  be  tried  separately, 
and  may  determine  the  order  thereof. "  In  an  action 
pending  in  a  federal  district  court  in  the  state  of 
Iowa,  the  defendant,  after  the  plaintiff  had  pleaded 
a  cause  of  action  under  the  state  law  in  one  count 
and  under  the  federal  act  in  another  count,  filed  be- 
fore trial  the  motion  requiring  the  plaintiff  to  elect 
upon  which  cause  of  action  he  would  proceed  to 
trial.^  The  court  held  that  under  the  statute  men- 
tioned, a  plaintiff  who  alleges  a  cause  of  action  under 
the  state  law  in  one  count  and  under  the  federal  act 
in  another  count  may,  if  the  evidence  is  doubtful, 
submit  both  to  the  jury  and  may  recover  under 
whichever  statute  appears  from  the  evidence  to  be 

2.  McAdow  V.  Kansas  City  W.  Ey.  Co.,  —  Mo.  App.  — ,  6  N.  C.  C. 
A.  76n,  206n,  233n,  164  S.  W.  188;  Wabash  R.  Co.  v.  Hayes,  234  U.  S. 
86,  58  L.  Ed.  1226,  6  N.  C.  C.  A.  224;  Southern  Ey.  Co.  v.  Bennett,  233 
U.  S.  80,  58  L.  Ed.  860. 

3.  Baakson  v.  Illinois  C.  E.  Co.,  196  Fed.  171.  Where  an  employe 
brought  a  suit  under  the  state  law,  and  later  under  the  federal  statute 
because  of  doubt  as  to  which  afforded  him  a  remedy,  the  cases  should 
be  consolidated  for  one  trial.  Tinkham  v.  Boston  &  M.  E.  Co.,  77 
N.  H.  11,  6  N.  C.  C.  A.  Sin,  233n. 


304        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

applicable.  In  passing  upon  the  motion,  Judge  Eeed 
said :  "  It  may  be  that  at  the  time  of  filing  her  peti- 
tion she  knows  the  acts  of  negligence  upon  which 
she  relies  for  recovery;  but  whether  they  authorize 
a  recoveiy  under  the  Employers'  Liability  Act  of 
Congress,  or  the  general  law  of  negligence,  she  may 
not  then  be  able  to  determine;  and  the  facts  may  be 
of  such  a  character  that  they  would  have  to  be  sub- 
mitted to  the  jury  to  determine  whether  the  injury 
to  the  deceased  occurred  while  he  was  engaged  in 
interstate  commerce,  or  while  he  was  not  so  engaged. 
It  may  be  that  at  the  close  of  the  testimony  it  will 
clearly  appear  that  he  was  or  was  not  engaged  in 
interstate  commerce,  and  that  the  court  may  then 
determine  the  question  as  one  of  law,  or  they  may  be 
such  as  to  require  the  submission  of  the  question  to 
the  jury  to  determine  that  question.  If  the  defend- 
ant through  its  own  neglect  or  some  of  its  employes 
has  inflicted  an  injury  upon  the  deceased  which 
caused  his  death,  and  it  is  legally  liable  therefor, 
whether  that  injury  was  inflicted  while  the  decedent 
was  engaged  in  interstate  commerce,  or  while  he  was 
not  so  engaged,  the  defendant  should  respond  there- 
for; but,  of  course,  it  can  be  required  to  respond  but 
once,  and  whether  or  not  the  recovery  shall  be  under 
the  Employers'  Liability  Act  of  Congress  for  the 
benefit  of  the  dependent  relatives  of  the  deceased,  if 
there  are  any,  or  shall  be  for  the  benefit  of  his  estate, 
the  defendant  is  not  particularly  interested,  except 
as  this  may  bear  on  the  amount  of  the  recovery. ' ' 

§174.  Instances  Where  Motion  to  Elect  Should 
Have  Been  Sustained  Before  Trial. — If  a  state  law 


PRACTICE   UNDER   FEDERAL   ACT  305 

differs  so  radically  from  the  federal  statute  as  to 
certain  defenses,  the  plaintiff  will  be  required  to  elect 
upon  which  cause  of  action  he  will  proceed  to  trial. 
Where  under  a  state  statute,  a  prima  facie  case  of 
negligence  on  the  part  of  the  employer  was  made 
out,  when  any  defect  or  unsafe  condition  was  shown, 
while  under  the  federal  act  the  plaintiff  must  show 
negligence  under  the  ordinary  rules  applicable,  if 
the  petition  states  a  cause  of  action  under  the  two 
laws  in  separate  counts,  a  motion  to  elect,  if  pre- 
sented before  the  trial,  should  be  then  sustained.^ 
In  another  action  for  the  death  of  a  brakeman,  it 
was  alleged  in  the  petition,  that  the  decedent  was 
engaged  in  interstate  commerce  or  intrastate  com- 
merce, the  plaintiff  did  not  know  which.  The  de- 
ceased was  killed,  it  was  alleged,  as  the  direct  result 
of  one  or  more  of  the  acts  of  negligence  charged  in 
the  petition.  The  court  held  that  the  petition  was 
not  sustainable  under  a  state  statute  authorizing 
alternative  allegations,  since  the  rights  and  liabili- 
ties of  the  parties  under  the  state  law  and  the  federal 
act  are  essentially  different,  and  hence  the  defendant 
was,  entitled  to  compel  the  plaintiff  to  elect  on  which 
cause  of  action  she  would  proceed.^  In  another  case, 
in  which  the  injured  servant  alleged  a  cause  of 
action  under  the  state  law  in  one  count  and  under 
the  federal  act  in  another,  it  was  held  that  the  motion 
to  elect  should  have  been  sustained,  but  that  the  im- 
proper denial  of  the  defendant's  motion  to  compel 

4.  South  Covington  &  C.  S.  R.  Co.  v.  Finan's  Adm'x,  153  Ky.  340. 

5.  Louisville  &  N.  R.  Co.  v.  Strange 's  Adm  'x,  156  Ky.  439,  6  N.  C. 
C.  A.  75n,  82,  83n,  185n. 

Roberts  LaablUUes — 20 


306        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

an  election  was  harmless,  where  the  court  mled  at 
the  close  of  all  the  evidence  that  the  case  did  not 
come  within  the  federal  act.*'  In  so  holding  that  the 
error  was  harmless  the  court  said  in  that  case:  ''But 
this  error  (failing  to  sustain  motion  to  elect  before 
trial)  was  not  in  this  case  prejudicial  to  the  railroad 
company  and  in  cases  like  this  the  failure  to  require 
the  plaintiff  to  elect  will  not  be  reversible  error  un- 
less it  appears  that  the  substantial  rights  of  the 
defendant  were  prejudiced  by  the  ruling  of  the  court. 
In  the  Strange  case,  we  pointed  out  the  difference 
between  the  federal  act  and  the  common  law  and  the 
reason  why  it  was  prejudicial  error  in  that  case  not 
to  have  sustained  a  motion  to  elect,  but  the  reasons 
that  made  it  prejudicial  not  to  sustain  the  motion 
in  that  case  do  not  appear  in  this  one." 

Plaintiff,  a  widow  of  an  employe  killed  in  Missouri, 
brought  suit  in  an  Iowa  state  court  basing  her  cause 
of  action  upon  the  Missouri  law  which  provides  that 
in  case  of  death,  the  widow  may  recover  without  the 
appointment  of  an  administrator.  Defendant  then 
filed  an  answer  alleging  that  the  cause  of  action  was 
governed  by  the  federal  act.  Later,  the  plaintiff  as 
administratrix  of  the  estate  of  her  husband,  filed  a 
new  suit  under  the  federal  act  and  the  defendant's 
answer  in  that  case  was  a  general  denial.  On  motion 
the  two  causes  were  consolidated  and  tried  together. 
It  does  not  appear  from  the  report  of  the  case 
whether  the  consolidation  of  the  two  actions,  in 
which  the  widow  was  plaintiff  in  one  suit  in  her  in- 

6.  LouisviUe  &  N.  R.  Co.  v.  Moore,  156  Ky.  708,  4  N.  C.  C.  A.  227n, 
5  N.  C.  C.  A.  77111. 


PRACTICE   UNDER   FEDERAL  ACT  307 

dividual  capacity  and  plaintiff  in  the  other  snit  as 
administratrix,  were  consolidated  by  consent.  At 
the  close  of  plaintiff's  evidence  a  motion  to  require 
plaintiff  to  elect  which  cause  of  action  she  would 
I3rosecute,  was  overruled,  but  at  the  close  of  the 
evidence,  the  court  on  defendant's  motion  required 
the  plaintiff  to  elect  and  she  chose  to  proceed  with 
the  action  under  the  state  law.  The  appellate  court 
held  that,  under  the  facts,  the  cause  of  action  was 
governed  by  the  federal  statute  and  ordered  the 
cause  reversed  for  that  reason  for  a  new  trial.'^ 

§  175.  Widow  Suing  in  Her  Own  Name  in  One  Suit 
and  as  Administratrix  in  Another,  Cannot  Be  Com- 
pelled to  Elect. — Although  a  widow  brings  one  suit 
in  her  own  name  against  a  railroad  company  for  the 
death  of  her  husband  under  the  laws  of  the  state,  and 
subsequently  brings  another  action  as  administratrix 
under  the  federal  act,  the  bringing  of  the  action 
under  the  federal  act  does  not  have  the  effect  of 
superseding  the  action  under  the  state  law,  so  as  to 
deprive  the  court  of  jurisdiction  to  hear  the  action 
under  the  state  law,  during  the  pendency  of  the  suit 
under  the  federal  act.  In  jurisdictions  where  the 
state  statute  permits  such  suits  to  be  consolidated, 
tried  and  prosecuted  together,  if  there  is  an  issue  of 
fact,  not  of  law,  as  to  whether  the  deceased  was  en- 
gaged in  intrastate  or  interstate  commerce,  no  elec- 
tion will  be  compelled  even  at  the  close  of  the 
evidence,  but  of  course  there  can  only  be  a  recovery 
under  one  law,  as  the  jury  may  find  the  facts  to  be, 

7.  Armbruster  v.  Chicago,  E.  I,  &  P.  Ey.  Co.,  —  Iowa  — ,  6  N,  C. 
C.  A.  195n,  147  N.  W.  337. 


308        INJUBIES  TO  ESTTERSTATE  EMPLOYES  ON  RAILROADS 

relative  to  employment  at  the  time  of  the  injury.^ 
The  Supreme  Judicial  Court  of  Massachusetts  ex- 
pressly disapproved  the  reasoning  in  the  Kentucky 
cases  cited  in  the  foregoing  paragraph  and  held  that 
a  widow  should  not  be  compelled  to  elect,  although 
suing  under  the  state  law  in  one  suit  and  as  admin- 
istratri:x  under  the  federal  law  in  another  suit.  The 
argument  of  the  court  in  this  case  is  so  forceful,  clear 
and  concise  that  it  would  detract  from  its  strength 
and  beauty  for  a  commentator  to  attempt  to  condense 
it  and  we  reproduce  it:  "But  we  are  of  opinion  that 
the  ruling  was  wrong.  The  federal  act  in  the  field 
covered  by  it,  supersedes  all  state  statutes.  As  to 
matters  within  the  scope  of  the  federal  power,  legis- 
lation by  Congress  is  supreme.  So  long  as  Congress 
had  not  acted  as  to  liability  for  injuries  received  by 
employes  of  railroads  while  engaged  in  interstate 
commerce,  legislation  by  the  states  touching  that 
subject,  being  within  the  police  power,  was  valid. 
But  when  Congress  exerted  its  jurisdiction  to  regu- 
late in  this  respect  commerce  between  the  states, 
state  statutes  previously  operative  in  that  sphere 
yielded  to  its  paramount  and  exclusive  power.  (Cit- 
ing cases.)  The  federal  act  has  no  greater  extent. 
It  does  not  undertal^e  to  affect  the  force  of  the  state 
statute  in  its  appropriate  sphere.  The  state  law  is 
as  supreme  and  exclusive  in  its  application  to  intra- 
state commerce  as  is  the  federal  law  to  interstate 
commerce.  If  the  employe  of  a  railroad  engaged  in 
both  interstate  and  intrastate  commerce  is  injured 
or  killed  while  in  the  former  service,  the  carrier's 

8.  Corbett  v.  Boston  &  M.  E.  E,,  —  Mass.  — ,  107  N.  E.  60. 


PRACTICE   UNDER   FEDERAL  ACT  309 

liability  is  controlled  and  must  be  determined  solely 
by  the  federal  law;  if  in  the  latter  service,  such 
liability  rests  wholly  upon  the  state  law  (citing  case). 
The  facts  and  not  the  pleadings  determine  whether 
the  wrong  done  in  any  given  case  gives  a  right  to 
recover  under  the  federal  or  the  state  statute.  The 
allegations  in  the  plaintiff's  declarations  in  these  two 
actions  do  not  constitute  the  test  wliether  the  juris- 
diction of  the  court  is  under  the  federal  or  state 
statute.  These  simply  are  the  basis  for  a  judicial 
inquiry  into  the  facts  which  alone  can  determine  that 
question.  It  is  a  familiar  principle  that,  where  in- 
consistent courses  are  open  to  an  injured  party  and 
it  is  doubtful  which  ultimately  may  lead  to  full 
relief,  he  may  follow  one  even  to  defeat,  and  then 
take  anotTier,  or  he  may  pursue  all  concurrently, 
until  it  finally  is  decided  which  affords  the  remedy. 
The  assertion  of  one  claim  which  turns  out  to  be 
unsound,  so  long  as  it  goes  no  further,  is  simply  a 
mistake.  It  is  not  and  does  not  purport  to  be  a  final 
choice,  nor  an  election.  A  party  is  not  obliged  to 
select  his  procedure  at  his  peril  (citing  cases).  This 
rule  has  been  followed  frequently  in  actions  where  it 
was  doubtful  whether  the  remedy  of  the  plaintiff  was 
imder  our  Employers'  Liability  Act  or  at  common 
law  (citing  cases).  It  is  equally  applicable  to  the 
cases  at  bar.  The  principle  is  not  changed  in  any 
material  respect,  because  the  question  relates  to 
remedies  afforded  by  the  statutes  of  different 
sovereign  powers,  each  exclusive  within  its  own 
domain.  The  relief  is  sought  in  the  same  fornm,  for 
the  state  court  has  jurisdiction  of  the  cause  of  action, 


310        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

whichever  statute  may  be  controlling  (citing  cases). 
There  are  strong  practical  considerations  in  the 
administration  of  justice  which  lead  to  the  same 
result.  It  oftentimes  would  be  a  great  hardship  upon 
the  parties  to  compel  them  to  try  out  first  the  ques- 
tion whether  the  federal  act  applies,  and,  if  it  in  the 
end  shall  be  decided  that  it  does  not,  then  to  test  by 
further  litigation  their  rights  under  the  state 
statute.  The  short  period  of  limitations  provided  in 
each  act  often  might  expire  before  a  final  decision 
could  be  reached.  If  adverse  to  the  plaintiff  on  the 
ground  of  error  in  the  form  of  relief  sought,  he  thus 
might  be  barred  from  a  just  recovery.  Although 
both  the  federal  and  state  statutes  as  to  amendments 
are  liberal  (Eev.  St.  U.  S.  §  954;  R.  L.  c.  173,  §  48) 
and  are  liberally  interpreted  in  cases  of  this  sort 
(Missouri,  Kansas  &  Texas  Ry.  v.  Wulf,  226  U.  S. 
570,  33  Supt.  Ct.  135,  57  L.  Ed.  355  (6  N.  C.  C.  A. 
230n,  237n),  A*nn.  Cas.  1914  B  134;  Herlihy  v.  Little, 
200  Mass.  284,  86  N.  E.  294),  nevertheless  the  allow- 
ance of  such  amendments  rests  commonly  in  the 
sound  discretion  of  the  trial  judge  and  is  not  subject 
to  revision  on  exceptions.  As  it  is  not  a  matter  of 
right,  substantial  interests  might  be  lost  through  no 
fault  of  a  plaintiff  who  constantly  had  been  alert  in 
his  own  behalf.  The  federal  act  has  been  construed 
as  covering  injuries  occurring  at  the  moment  when 
the  particular  service  performed  is  a  part  of  inter- 
state commerce.  Illinois  Central  R.  R.  v.  Behrens, 
233  U.  S.  473,  478,  34  Sup.  Ct.  646,  58  L.  Ed.  1051 
(6  N.  C.  C.  A.  189n),  Ann.  Cas.  1914  C  163.  Whether 
a  railroad  employe  is  engaged  in  interstate  or  intra- 


PRACTICE  UNDER   FEDERAL  ACT  311 

state  commerce  often  involves  legal  discrimination 
of  great  nicety  about  which  even  the  justices  of  the 
highest  court  are  not  always  in  harmony  (citing 
cases).  It  would  be  a  saving  of  expense  both  to  the 
parties  and  to  the  commonwealth  if  the  two  actions 
could  be  prosecuted  together,  so  that  by  one  trial 
the  facts  could  be  ascertained  and  the  causes  ended 
by  the  determination  of  the  governing  principles  of 
law.  Wliere  the  settlement  of  an  issue  of  fact  de- 
pends upon  conflicting  evidence,  it  seems  more  likely 
that  the  truth  will  be  ascertained  by  adducing  all  the 
evidence  at  one  time  before  a  single  tribunal  and 
enabling  it  to  find  out  the  real  situation  under  an 
adequate  statement  of  the  governing  rules  of  law 
applicable  to  all  phases,  than  to  require  two  distinct 
and  successive  inquiries  before  separate  tribunals 
where  only  a  single  aspect  of  the  incident  could  be 
open  to  investigation  at  one  time.  There  are  im- 
portant points  of  dissimilarity  between  the  rights 
conferred  and  the  burdens  imposed  under  the  two 
statutes.  The  rules  of  evidence  may  be  different. 
The  principles  of  law  by  which  liability  may  be 
established  under  the  two  statutes  are  somewhat 
divergent.  Difficulties  will  be  presented  in  the  trial 
which  will  require  great  care  and  a  strong  grasp  by 
the  presiding  judge,  and  demand  careful  discrimina- 
tion by  jurors.  But  these  are  not  insurmountable 
obstacles,  nor  do  they  appear  to  counterbalance  the 
advantages  which  will  accrue  in  permitting  a  con- 
joint prosecution  of  the  two  causes  in  appropriate 
instances. ' '  ^ 

0.  Corbett  v.  Boston  &  M.  E.  E.,  —  Mass.  — ,  107  N.  E.  60. 


312        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

§  176.  Verdicts  by  Less  Than  Twelve  Jurors, 
When  Permissible  Under  State  Law,  Valid  in  Ac- 
tions Under  Federal  Statute. — Section  6  of  the  Fed- 
eral Employers'  Liability  Act  (one  of  the  1910 
amendments)  provides  that  the  "jurisdiction  of 
courts  of  the  United  States  under  this  act  shall  be 
concurrent  to  that  of  the  courts  of  the  several  states, 
and  no  case  arising  under  this  act  and  brought  in 
any  state  court  of  competent  jurisdiction  shall  be 
removed  to  any  court  of  the  United  States."  ^^  The 
seventh  amendment  to  the  Constitution  of  the  United 
States  provides:  "In  suits  at  common  law,  where 
the  value  in  controversy  shall  exceed  twenty  dollars, 
the  right  of  trial  by  jury  shall  be  preserved,  and  no 
fact  tried  by  a  jury  shall  be  otherwise  reexamined  in 
any  court  of  the  United  States,  than  according  to 
the  rules  of  the  common  law. ' '  Construing  this  pro- 
vision of  the  Constitution,  the  courts  have  uniformly 
held  that  the  jury  trial  contemplated  by  this  section 
is  the  right  to  a  trial  by  a  jury  of  twelve  men,  whose 
findings  shall  be  unanimous. ^^  It  has,  however,  been 
held  without  dissent,  that  this  seventh  amendment 
does  not  apply  to  the  states,  and  that  a  state  is  not 
prohibited  by  the  federal  Constitution  from  provid- 
ing for  a  jury  of  less  than  twelve  men  or  for  a  verdict 

10.  Act  April  22,  1908,  c.  149,  §  6,  35  Stat.  66,  as  amended  by  Act 
AprU  5,  1910,  c.  143,  §  1,  36  Stat.  291,  Fed.  Stat.  Ann.  1912  Supp. 
p.  335. 

11.  Thompson  v.  Utah,  170  U.  S.  343,  42  K  Ed.  1061;  American 
Pub.  Co.  V.  Fisher,  166  U.  S.  464,  41  L.  Ed.  1079;  Easmussen  v. 
United  States,  197  U.  S.  516,  49  L.  Ed.  862;  Black  v.  Jackson,  177 
U.  S.  349,  44  L.  Ed.  801. 


PRiVCTICE   UNDER   FEDERAL  ACT  313 

that  is  not  unanimous.^-  Nor  is  a  trial  under  a  state 
statute  dispensing  with  the  feature  of  unanimity  or 
abridging  the  number  of  jurors,  a  denial  of  "due 
process"  within  the  meaning  of  the  fourteenth 
amendment  to  the  Constitution  of  the  United 
States.^^  The  constitutions  and  the  statutes  of  sev- 
eral of  the  states  provide  that  in  civil  cases,  a  ver- 
dict may  be  returned  by  less  than  twelve  men  or  by 
three-fourths  or  five-sixths  of  the  jurors  concurring 
in  the  verdict.  It  has  been  urged  before  at  least 
three  courts,  that  in  actions  prosecuted  in  the  state 
courts  under  the  Federal  Employers'  Liability  Act 
the  provision  of  the  Constitution  of  the  United 
States  requiring  a  unanimous  verdict  by  twelve 
men  applies  in  state  courts  for  the  reason  that  the 
action  is  under  an  Act  of  Congress.  The  courts  have 
unanimously  held  that  the  verdict  in  such  cases  is 
not  controlled  by  the  provision  of  the  national  Con- 
stitution but  by  the  laws  of  the  state  where  the  suit 
is  pending.  The  fact  that  the  suit  is  under  a  federal 
statute  makes  no  difference,  for  the  reason,  as  to  all 
matters  of  procedure,  the  state  law  is  controlling.^* 
In  the  Kelley  case,  cited,  the  Court  of  Appeals  of 

12.  Edwards  v.  Elliott,  21  WaU.  (U.  S.)  532,  557,  22  L.  Ed.  487; 
Barron  v.  Baltimore,  7  Pet.  (U.  S.)  243,  8  L.  Ed.  464;  Twitchell  v. 
Pennsylvania,  7  Wall.  (U.  S.)  321,  19  L.  Ed.  223;  Walker  v.  Sauvinet, 
92  U.  S.  90,  23  L.  Ed.  678;  Maxwell  v.  Dow,  176  U.  S.  581,  44  L. 
Ed.  597. 

13.  Hurtado  v.  California,  110  U.  S.  517,  28  L.  Ed.  232;  Kennard 
V.  Louisiana,  92  U.  S.  480,  23  L.  Ed.  478;  Davidson  v.  New  Orleans, 
96  U.  S.  97,  24  L.  Ed.  616. 

14.  Chesapeake  &  O.  Ey.  Co.  v.  Kelly's  Adm'x,  —  Ky.  — ,  171  S.  W. 
185;  s.  c,  —  Ky.  — ,  171  S.  W.  182;  s.  c,  160  Ky.  296;  Gibson  v. 
Bellingham  &  N.  Ry.  Co.,  213  Fed.  488 ;  Winters  v.  Minneapolis  &  St. 
L.  R.  Co.,  —  Minn.  — ,  6  N.  C.  C.  A.  78n,  201n,  148  N.  W.  106. 


314        INJUEIES  TO  INTERSTATE  EMPLOYES  ON  RAILROADS 

Kentucky  said:  "It  seems  to  us  that,  when  state 
courts  are  given  jurisdiction  to  hear  and  determine 
causes  of  action  created  by  federal  legislation,  they 
may  exercise  this  jurisdiction  according  to  the  prac- 
tice and  procedure  of  the  forum  and  under  the  jury 
systems  adopted,  subject,  of  course,  to  such  condi- 
tions as  Congress  may  attach  to  the  legislation ;  and 
Congress  did  not,  in  the  legislation  here  in  question, 
attempt  to  attach  any  conditions  to  the  practice  and 
procedure  through  which  the  jurisdiction  of  state 
courts  of  competent  jurisdiction  might  be  exercised 
in  the  enforcement  of  rights  arising  under  this 
act."i^ 

§  177.  When  Suit  Under  State  Law  Is  Res  Ad  judi- 
cata.— Unless  there  is  an  identity  of  parties  and  of 
subject  matter,  a  suit  prosecuted  and  determined 
under  the  state  law,  is  not  a  bar  to  a  subsequent  suit 
under  the  federal  act.  A  judgment  against  the 
widow  who  sued  in  her  individual  capacity  for  her- 
self and  her  children  to  recover  damages  from  an 
interstate  carrier  for  the  death  of  her  husband  while 
in  its  employ,  which  was  prosecuted  and  tried  under 
the  state  law,  and  which  provided  that  there  should 
be  no  recovery  for  the  negligence  of  a  fellow  serv- 
ant, is  not  a  bar  to  a  subsequent  suit  by  her  as  ad- 
ministratrix, for  the  benefit  of  herself  and  the  same 
children  against  the  carrier  under  the  federal  act 
in  which  recovery  was  asked,  because  of  the  negli- 

15.  The  decisions  of  these  courts  are  no  doubt  correct  under  the 
following  controlling  decisions  of  the  United  States  Supreme  Court: 
Claflia  V.  Houseman,  93  U.  S.  130,  23  L.  Ed.  833;  Louisville  &  N.  B. 
Co.  V.  Scott,  133  Ky.  724,  19  Ann.  Cas.  392,  affirmed  in  219  U.  S.  209, 
55  L.  Ed.  183. 


PRACTICE   UNDER   FEDERAL  ACT  315 

gence  of  such  fellow  servant.^*'  Mr.  Justice  Day, 
speaking  for  the  court  in  that  case,  said :  '  *  To  work 
an  estoppel  the  first  proceeding  and  judgment  must 
be  a  bar  to  the  second  one,  because  it  is  a  matter 
already  adjudicated  between  the  parties.  The  cause 
of  action  under  the  state  law,  if  it  could  be  prosecuted 
to  recover  for  the  wrongful  death  alleged  in  this 
case,  was  based  upon  a  different  theory  of  the  right 
to  recover  than  prevails  under  the  federal  statute. 
Under  the  Pennsylvania  law  there  could  be  no  re- 
covery for  the  negligence  of  the  fellow  servants  of 
the  deceased.  This  was  the  issue  upon  which  the 
case  was  submitted  at  the  second  trial  and  a  recov- 
ery had.  Whether  the  plaintiff  could  recover  under 
the  Pennsylvania  statute  was  not  involved  in  the 
second  action,  and  the  plaintiff's  right  to  recover 
because  of  the  injury  by  the  negligence  of  the  fellow 
servants  was  not  involved  in  or  concluded  by  the  first 
suit.  Furthermore,  it  is  well  settled  that  to  work 
an  estoppel  by  judgment  there  must  have  been  iden- 
tity of  parties  in  the  two  actions.  Brown  v.  Fletcher, 
210  U.  S.  82,  52  L.  Ed.  966,  28  Sup.  Ct.  Rep.  702; 
Ingersoll  v.  Coram,  211  U.  S.  335,  53  L.  Ed.  208,  29 
Sup.  Ct.  Eep.  92.  The  circuit  court  of  appeals  in 
the  present  case,  while  recognizing  this  rule,  dis- 
posed of  the  contention  upon  the  ground  that  the 
parties  were  essentially  the  same  in  both  actions  (the 
first  action  was  for  the  benefit  of  Li2izie  M.  Troxell 
and  the  two  minor  children,  and  the  present  case, 
although  the  action  was  brought  by  the  administra- 

16.  TroxeU  v.   Delaware,  L.  &  W.  E.  Co.,  227  U.  S.  434,  57  L. 
Ed.  586. 


316        INJUEIES  TO  INTERSTATE  EMPLOYES  ON  RAILEOADS 

trix,  is  for  the  benefit  of  herself  and  children) ;  and 
held  that,  except  in  mere  form,  the  actions  were  for 
the  benefit  of  the  same  persons,  and  therefore  the 
parties  were  practically  the  same;  and  that  the  omis- 
sion to  sue  as  administratrix  was  merely  technical, 
and  would  have  been  curable  by  amendment.  This 
conclusion  was  reached  before  this  court  announced 
its  decision  in  American  E.  Co.  v.  Birch,  224  U.  S. 
547,  56  L.  Ed.  879,  32  Sup.  Ct.  Rep.  603.  That  action 
was  brought  under  the  Federal  Employers '  Liability 
Act  by  the  widow  and  son  of  the  decedent,  and  not 
by  the  administrator.  The  lower  court  held  that  the 
requirement  of  the  act  that  the  suit  should  be 
brought  in  case  of  death  by  the  personal  representa- 
tive of  the  deceased  did  not  prevent  a  suit  in  the 
name  of  the  persons  entitled  to  the  benefit  of  the 
recovery.  In  other  words,  the  court  ruled,  as  did 
the  circuit  court  of  appeals  in  this  case,  that  where 
it  was  shown  that  the  widow  and  child  were  the  sole 
beneficiaries,  they  might  maintain  the  action  with- 
out the  appointment  of  a  personal  representative. 
This  court  denied  the  contention,  and  held  that  Con- 
gress, doubtless  for  good  reasons,  had  specifically 
provided  that  an  action  under  the  Employers'  Lia- 
bility Act  could  be  brought  only  by  the  personal 
representative;  and  the  judgment  was  reversed  with- 
out prejudice  to  the  rights  of  such  personal  repre- 
sentative. We  think  that  under  the  ruling  in  the 
Birch  case  there  was  not  that  identity  of  parties  in 
the  former  action  by  the  widow  and  the  present  case, 
properly  brought  by  the  administrator  under  the 


PRACTICE  UNDER  FEDERAL,  ACT  317 

Employers'  Liability  Act,  which  renders  the  former 
suit  and  judgment  a  bar  to  the  present  action." 

§  178.  Errors  in  Actions  Under  Federal  Act  Held 
Harmless  on  Appeal. — In  all  actions  under  the  fed- 
eral act  where  there  are  more  than  one  beneficiary, 
the  verdict  should  apportion  the  sum  due  each  of 
them  but  where  no  instructions  requiring  the  jury 
so  to  do  were  asked  and  no  objection  was  made  or 
exception  taken  to  the  verdict,  the  error  has  been 
held  to  be  harmless  on  appeal.^'^  A  trial  court  in  an 
action  under  the  federal  act  instructed  the  jury  on 
the  measure  of  damages  to  a  wife  and  dependent 
child  that  they  should  include  the  value  of  the  sup- 
port and  "protection"  they  would  have  secured  from 
the  deceased  had  he  lived.  The  court  held  that  the 
word  "protection"  was  used  in  a  pecuniary  sense 
in  the  instruction  and  that  even  if  not  so  understood 
by  the  jury,  the  error  under  a  state  statute  prohibit- 
ing a  reversal  for  harmless  errors,  was  not  such  as 
to  justify  a  reversal.^^  In  an  action  for  the  death 
of  a  fireman  prosecuted  under  the  Federal  Employ- 
ers '  Liability  Act,  the  trial  court  instructed  the  jury 
that  if  an  employe  is  injured  through,  defective  in- 
strumentalities it  is  prima  facie  evidence  of  the  com- 
pany's negligence  and  that  the  railroad  company 
"assumes  the  burden"  of  showing  that  it  exercised 
ordinary  care  in  furnishing  the  appliances.  The 
Supreme  Court  of  the  United  States  in  passing  on 

17.  Hardwick  v.  Wabash  E.  Co.,  181  Mo.  App.  156;  Southern  Ey. 
Co.  V.  Smith,  123  C.  C.  A.  488,  205  Fed.  360;  Yazoo  &  M.  V.  E.  Co. 
V.  Wright,  125  C.  C.  A.  25,  207  Fed.  281. 

18.  Sweet  v.  Chicago  &  N.  W.  E.  Co.,  157  Wis.  400,  6  N.  C.  C.  A. 
78n,  94n,  232n,  451n. 


318        INJURIES  TO  INTERSTATE  EMPLOYES  ON  RAH, ROADS 

this  instraction  held  that  it  was  not  snch  an  error  as 
to  justify  a  reversal  where  the  court's  charge  in 
another  clause  plainly  stated  to  the  jury  that  the 
burden  of  proving  negligence  was  on  the  plaintiff 
throughout  the  case.^^  An  instruction  in  an  action 
under  the  federal  act  on  the  effect  of  contributory 
negligence  in  which  the  court  charged  the  jury  that 
they  should  ''deduct"  a  reasonable  amount  for  the 
plaintiff's  contributory  negligence  instead  of  using 
the  word  '  *  diminished, ' '  found  in  the  federal  statute, 
was  held  not  to  be  an  error. ^^ 

§  179.  Plaintiff  in  Action  Under  Federal  Act  May 
Sue  as  a  Poor  Person  in  United  States  Courts,  When. 
— In  any  action  under  the  Federal  Employers'  Lia- 
bility Act  prosecuted  in  the  courts  of  the  United 
States  the  plaintiff,  by  order  of  court,  may  com- 
mence and  prosecute  the  action  without  being  re- 
quired to  prepay  fees  and  costs,  upon  filing  in  court 
a  statement  under  oath  in  writing  that  because  of 
his  poverty  he  is  unable  to  pay  the  costs  of  the  suit 
or  to  give  security  for  the  same  and  that  he  believes 
he  is  entitled  to  the  redress  he  seeks  by  the  action 
and  setting  forth  briefly  the  nature  of  his  alleged 
cause  of  action. ^^  The  Act  of  Congress  permitting 
a  person  to  sue  as  poor  person  in  the  federal  courts 
is  as  follows :  ' '  That  any  citizen  of  the  United  States 
entitled  to  commence  or  defend  any  suit  or  action, 
civil  or  criminal,  in  any  court  of  the  United  States, 

19.  Southern  Ry.  Co.  v.  Bennett,  233  XJ.  S.  80,  58  L.  Ed.  860. 

20.  TUgham  v.  Seaboard  A.  L.  By.  Co.,  —  N.  C.  — ,  83  S.  E.  315. 

21.  Act  of  Congress  approved  June  25,  1910,  c.  435,  Fed.  Stat.  Ann. 
1912  Supp.  p.  45. 


PRACTICE   UNDER   FEDERAL  ACT  319 

may,  npon  the  order  of  the  court,  commence  and 
prosecute  or  defend  to  conclusion  any  suit  or  action, 
or  a  writ  of  error,  or  an  appeal  to  the  circuit  court 
of  appeals,  or  to  the  Supreme  Court  in  such  suit  or 
action,  including  all  appellate  proceedings,  unless 
the  trial  court  shall  certify  in  writing  that  in  the 
opinion  of  the  court  such  appeal  or  writ  of  error  is 
not  taken  in  good  faith,  without  being  required  to 
prepay  fees  or  costs  or  for  the  printing  of  the  record 
in  the  appellate  court  or  give  security  therefor,  be- 
fore or  after  bringing  suit  or  action,  or  upon  suing 
out  a  writ  of  error  or  appealing,  upon  filing  in  said 
court  a  statement  under  oath  in  writing  that  because 
of  his  poverty  he  is  unable  to  pay  the  costs  of  said 
suit  or  action  or  of  such  writ  of  error  or  appeal,  or 
to  give  security  for  the  same,  and  that  he  believes 
that  he  is  entitled  to  the  redress  he  seeks  by  such 
suit  or  action  or  writ  of  error  or  appeal,  and  setting 
forth  briefly  the  nature  of  his  alleged  cause  of  action 
or  appeal. ' ' 


APPENDIX  A 

FEDERAL  EMPLOYERS'  LIABILITY  ACT  OF  1906 

An  Act  Relating  to  liability  of  common  carriers  in  the  Dis- 
trict of  Columbia  and  Territories  and  common  carriers 
engaged  in  commerce  between  the  States  and  between 
the  States  and  foreign  nations  to  their  employes. 

Be  it  enacted  hy  the  Senate  and  House  of  Representa- 
tives of  the  United  States  of  America  in  Congress  assem- 
bled, That  every  common  carrier  engaged  in  trade  or  com- 
merce in  the  District  of  Columbia,  or  in  any  Territory  of 
the  United  States,  or  between  the  several  States,  or  between 
any  Territory  and  another,  or  between  any  Territory  or 
Territories  and  any  State  or  States,  or  the  District  of 
Columbia,  or  with  foreign  nations,  or  between  the  District 
of  Columbia  and  any  State  or  States  or  foreign  nations, 
shall  be  liable  to  any  of  its  employes,  or,  in  the  case  of  his 
death,  to  his  personal  representative  for  the  benefit  of  his 
widow  and  children,  if  any,  if  none,  then  for  his  parents,  if 
none,  then  for  his  next  of  kin  dependent  upon  him,  for  all 
damages  which  may  result  from  the  negligence  of  any  of 
its  officers,  agents,  or  employes,  or  by  reason  of  any  defect 
or  insufficiency  due  to  its  negligence  in  its  cars,  engines, 
appliances,  machinery,  track,  roadbed,  ways,  or  works. 

Sec.  2.  That  in  all  actions  hereafter  brought  against  any 
common  carriers  to  recover  damages  for  personal  injuries 
to  an  employe,  or  where  such  injuries  have  resulted  in  his 
death,  the  fact  that  the  employe  may  have  been  guilty  of 
contributory  negligence  shall  not  bar  a  recovery  where  his 
contributory  negligence  was  slight  and  that  of  the  employer 
was  gross  in  comparison,  but  the  damages  shall  be  dimin- 

321 

Eoberts  liabilities— 21 


322  APPENDIX 

ished  by  the  jury  in  proportion  to  the  amount  of  negli- 
gence attributable  to  such  employe.  All  questions  of 
negligence  and  contributory  negligence   shall  be  for  the 

jui-y. 

Sec.  3.  That  no  contract  of  employment,  insurance, 
relief  benefit,  or  indemnity  for  injury  or  death  entered  into 
by  or  on  behalf  of  any  employe,  nor  the  acceptance  of  any 
such  insurance,  relief  benefit,  or  indemnity  by  the  person 
entitled  thereto,  shall  constitute  any  bar  or  defense  to  any 
action  brought  to  recover  damages  for  personal  injuries  to 
or  death  of  such  employe :  Provided,  Jwwever,  That  upon 
the  trial  of  such  action  against  any  common  carrier  the 
defendant  may  set  off  therein  any  sum  it  has  contributed 
toward  any  such  insurance,  relief  benefit,  or  indemnity 
that  may  have  been  paid  to  the  injured  employe,  or,  in  case 
of  his  death,  to  his  personal  representative. 

Sec.  4.  That  no  action  shall  be  maintained  under  this 
Act,  unless  commenced  within  one  year  from  the  time  the 
cause  of  action  accrued. 

Sec.  5.  That  nothing  in  this  Act  shall  be  held  to  limit 
the  duty  of  common  carriers  by  railroads  or  impair  the 
rights  of  their  employes  under  the  safety-appliance  Act  of 
March  second,  eighteen  hundred  and  ninety-three,  as 
amended  April  first,  eighteen  hundred  and  ninety-six,  and 
March  second,  nineteen  hundred  and  three. 

Approved,  June  11,  1906.  34  U.  S.  Stat,  at  L.  232,  e, 
3073. 


APPENDIX  B 

FEDERAL  EMPLOYERS'  LIABILITY  ACT  OF  1908 

An  Act  Relating  to  the  liability  of  common  carriers  by  rail- 
road to  their  employes  in  certain  cases. 

Be  it  enacted  hy  the  Senate  and  House  of  Representa- 
tives of  the  United  States  of  America  in  Congress  asscm- 
hled.  Section  1.  Every  common  carrier  by  railroad  while 
engaging  in  commerce  between  any  of  the  several  States  or 
Territories,  or  between  any  of  the  States  and  Territories, 
or  between  the  District  of  Columbia  and  any  of  the  States 
or  Territories,  or  between  the  District  of  Coliunbia  or  any 
of  the  States  or  Territories  and  any  foreign  nation  or 
nations,  shall  be  liable  in  damages  to  any  person  suffering 
injury  while  he  is  employed  by  such  carrier  in  such  com- 
merce, or,  in  case  of  the  death  of  such  employe,  to  his  or  her 
personal  representative,  for  the  benefit  of  the  surviving 
widow  or  husband  and  children  of  such  emploj^e;  and,  if 
none,  then  of  such  employe's  parents;  and,  if  none,  then 
of  the  next  of  kin  dependent  upon  such  employe,  for  such 
injury  or  death  resulting  in  whole  or  in  part  from  the 
negligence  of  any  of  the  officers,  agents,  or  employes  of 
such  carrier,  or  by  reason  of  any  defect  or  insufSciency, 
due  to  its  negligence,  in  its  ears,  engines,  appliances, 
machinery,  track,  roadbed,  works,  boats,  wharves  or  other 
equipment. 

Sec.  2.  Every  common  carrier  by  railroad  in  the  Terri- 
tories, the  District  of  Columbia,  the  Panama  Canal  Zone, 
or  other  possessions  of  the  United  States  shall  be  liable  in 
damages  to  any  person  suffering  injury  while  he  is  employed 
by  such  carrier  in  any  of  said  jurisdictions,  or,  in  case 

323 


324  APPENDIX 

of  the  death  of  such  employe,  to  his  or  her  personal  rep- 
resentative, for  the  benefit  of  the  surviving  widow  or  hus- 
band and  children  of  such  employe;  and,  if  none,  then  of 
such  employe's  parents;  and,  if  none,  then  of  the  next  of 
kin  dependent  upon  such  employe,  for  such  injury  or  death 
resulting  in  whole  or  in  part  from  the  negligence  of  any 
of  the  officers,  agents,  or  employes  of  such  carrier,  or  by 
reason  of  any  defect  or  insufficiency,  due  to  its  negligence, 
in  its  cars,  engines,  appliances,  machinery,  track,  roadbed, 
works,  boats,  wharves  or  other  equipment. 

Sec,  3.  In  all  actions  hereafter  brought  against  any  such 
common  carrier  by  railroad  under  or  by  virtue  of  any  of 
the  provisions  of  this  act  to  recover  damages  for  personal 
injuries  to  an  employe  or  where  such  injuries  have  resulted 
in  his  death,  the  fact  that  the  employe  may  have  been 
guilty  of  contributory  negligence  shall  not  bar  a  recovery, 
but  the  damages  shall  be  diminished  by  the  jury  in  propor- 
tion to  the  amount  of  negligence  attributable  to  such 
employe:  Provided,  That  no  such  employe  who  may  be 
injured  or  killed  shall  be  held  to  have  been  guilty  of  con- 
tributory negligence  in  any  case  where  the  violation  by 
such  common  carrier  of  any  statute  enacted  for  the  safety 
of  employes  contributed  to  the  injury  or  death  of  such 
employe. 

Sec.  4.  In  any  action  brought  against  any  common  car- 
rier under  or  by  virtue  of  any  of  the  provisions  of  this  act 
to  recover  damages  for  injuries  to,  or  the  death  of,  any  of 
its  employes,  such  employe  shall  not  be  held  to  have 
assumed  the  risks  of  his  employment  in  any  case  where  the 
violation  by  such  common  carrier  of  any  statute  enacted 
for  the  safety  of  employes  contributed  to  the  injury  or 
death  of  such  employe. 

Sec.  5.  Any  contract,  rule,  regulation,  or  device  whatso- 
ever, the  purpose  or  intent  of  which  shall  be  to  enable  any 
common  carrier  to  exempt  itself  from  any  liability  created 
by  this  act,  shall  to  that  extent  be  void :  Provided,  That  in 
any  action  brought  against  any  such  common  carrier  under 


FEDERAL    EMPLOYERS'    LIABILITY   ACT  325 

or  by  virtue  of  any  of  the  provisions  of  this  act,  such  com- 
mon carrier  may  set  off  therein  any  sum  it  has  contributed 
or  paid  to  any  insurance^  relief  benefit,  or  indemnity  that 
may  have  been  paid  to  the  injured  employe  or  the  person 
entitled  thereto  on  account  of  the  injury  or  death  for  which 
said  action  was  brought. 

Sec.  6.  No  action  shall  be  maintained  under  this  act 
unless  commenced  within  two  years  from  the  day  the  cause 
of  action  accrued. 

Sec.  7.  The  term  "common  carrier"  as  used  in  this  act 
shall  include  the  receiver  or  receivers  or  other  persons  or 
corporations  charged  with  the  duty  of  the  management  and 
operation  of  the  business  of  a  common  carrier. 

Sec.  8.  Nothing  in  this  act  shall  be  held  to  limit  the  duty 
or  liability  of  common  carriers  or  to  impair  the  rights  of 
their  employes  under  any  other  act  or  acts  of  Congress,  or 
to  affect  the  prosecution  of  any  pending  proceeding  or  right 
of  action  under  the  act  of  Congress  entitled  "An  act  relat- 
ing to  liability  of  common  carriers  in  the  District  of  Colum- 
bia and  Territories,  and  to  common  carriers  engaged  in  com- 
merce between  the  States  and  between  the  States  and  for- 
eign nations  to  their  employes,"  approved  June  11,  1906. 

Approved,  April  22,  1908.  35  U.  S.  Stat,  at  L.  65  e. 
149. 


APPENDIX  C 

FEDERAL  EMPLOYERS'  LIABILITY  ACT,  AMEND- 
MENTS OF  1910 

An  Act  To  amend  an  Act  entitled  "An  Act  relating  to  the 
liability  of  common  carriers  by  railroad  to  their 
employes  in  certain  eases,"  approved  April  twenty-sec- 
ond, nineteen  hundred  and  eight. 

Be  it  enacted  hy  the  Senate  and  House  of  Representa- 
tives of  the  United  States  of  America  in  Congress  assem- 
bled, That  an  Act  entitled  "An  Act  relating  to  the  liability 
of  common  carriers  by  railroad  to  their  employes  in  cer- 
tain cases,"  approved  April  twenty-second,  nineteen  hun- 
dred and  eight,  be  amended  in  section  six  so  that  said  section 
shall  read: 

Sec.  6.  (As  amended  by  act  of  April  5,  1910.)  No  action 
shall  be  maintained  under  this  act  unless  commenced  within 
two  years  from  the  day  the  cause  of  action  accrued. 

Under  this  act  an  action  may  be  brought  in  a  circuit 
court  of  the  United  States,  in  the  district  of  the  residence 
of  the  defendant,  or  in  which  the  cause  of  action  arose,  or 
in  which  the  defendant  shall  be  doing  business  at  the  time 
of  commencing  such  action.  The  jurisdiction  of  the  courts 
of  the  United  States  under  this  act  shall  be  concurrent  with 
that  of  the  courts  of  the  several  States,  and  no  case  arising 
under  this  act  and  brought  in  any  State  court  of  competent 
jurisdiction  shall  be  removed  to  any  court  of  the  United 
States. 

Sec.  2.  That  said  Act  be  further  amended  by  adding  the 
following  section  as  section  nine  of  said  Act : 

Sec.  9.  Any  right  of  action  given  by  this  act  to  a  person 

326 


AMENDMENTS   OP    1910  327 

suffering  injury  shall  survive  to  his  or  her  personal  repre- 
sentative, for  the  benefit  of  the  surviving  widow  or  husband 
and  children  of  such  employe,  and,  if  none,  then  of  such 
employe's  parents;  and,  if  none,  then  of  the  next  of  kin 
dependent  upon  such  employe,  but  in  such  cases  there  shall 
be  only  one  recovery  for  the  same  injury. 
Approved,  April  5,  1910. 


APPENDIX  D 

REPORT  OF  JUDICIARY  COMMITTEE  OF  HOUSE 
ON    FEDERAL    EMPLOYERS'    LIA- 
BILITY ACT  OF  1908 

The  Committee  on  the  Judiciary,  to  whom  was  referred 
House  Bill  20310,  have  had  the  same  under  consideration, 
and  report  it  to  the  House  with  a  recommendation  that  it 
pass. 

This  bill  relates  to  common  carriers  by  railroad  engaged 
in  interstate  and  foreign  commerce  and  in  commerce  in  the 
District  of  Columbia,  the  Territories,  the  Canal  Zone,  and 
other  possessions  of  the  United  States.  It  is  intended  in  its 
scope  to  cover  all  commerce  to  which  the  regulative  power 
of  Congress  extends. 

The  purpose  of  this  bill  is  to  change  the  common-law  lia- 
bility of  employers  of  labor  in  this  line  of  commerce,  for 
personal  injuries  received  by  employes  in  the  service.  It 
abolishes  the  strict  common-law  rule  of  liability  which  bars 
a  recovery  for  the  personal  injury  or  death  of  an  employe, 
occasioned  by  the  negligence  of  a  fellow-servant.  It  also 
relaxes  the  common-law  rule  which  makes  contributory  neg- 
ligence a  defense  to  claims  for  such  injuries.  It  permits  a 
recovery  by  an  employe  for  an  injury  caused  by  the  negli- 
gence of  a  co-employe ;  nor  is  such  a  recovery  barred  even 
though  the  injured  one  contributed  by  his  own  negligence 
to  the  injury.  The  amount  of  the  recovery,  however,  is 
diminished  in  the  same  degree  that  the  negligence  of  the 
injured  one  contributed  to  the  injury.  It  makes  each  party 
responsible  for  his  own  negligence,  and  requires  each  to 
bear  the  burden  thereof.  The  bill  also  provides  that,  to  the 
extent  that  any  contract,  rule,  or  regulation  seeks  to  exempt 

328 


REPORT   OF    HOUSE    JUDICIARY    COMMITTEE  329 

the  employer  from  liability;  created  by  this  act,  to  that 
extent  such  contract,  rule  or  regulation  shall  be  void. 

Many  of  the  States  have  already  changed  the  common- 
law  rule  in  these  particulars,  and  by  this  bill  it  is  hoped  to 
fix  a  uniform  rule  of  liability  throughout  the  Union  with 
reference  to  the  liability  of  common  carriers  to  their 
employes. 

Sections  1  and  2  of  this  bill  provide  that  common  carriers 
by  railroad,  engaged  in  interstate  and  foreign  commerce,  in 
commerce  in  the  District  of  Columbia,  the  Territories,  the 
Panama  Canal  Zone,  and  other  possessions  of  the  United 
States,  shall  be  liable  to  its  employes  for  personal  injuries 
resulting  from  its  negligence  or  by  reason  of  any  defect  or 
insufficiency  due  to  its  negligence  in  its  roads,  equipment, 
or  methods.  It  is  not  a  new  departure,  but  rather  goes  back 
to  the  old  law  which  made  the  master  liable  for  injury  occa- 
sioned by  the  negligence  of  his  servant,  either  to  a  co-servant 
or  to  a  third  person. 

The  doctrine  o-f  fellow-servant  was  first  enunciated  in 
England  in  1837,  and  since  that  time  it  has  been  generally 
followed  in  that  country  and  this,  except  where  abrogated 
or  modified  by  statute.  Whatever  reason  may  have  existed 
for  the  doctrine  at  the  time  it  was  first  announced,  it  can 
not  be  said  to  exist  now,  under  modern  methods  of  com- 
merce by  railroad.  It  is  possible  that  a  century  ago,  under 
industrial  methods  and  systems  as  they  then  existed,  co-em- 
ployes could  have  some  influence  over  each  other  tending 
to  their  personal  safety.  It  is  possible  that  they  could  know 
something  of  the  habits  and  characteristics  of  each  other. 
Under  present  industrial  methods  and  systems  this  can  not 
be  true.  Then  they  worked  with  simple  tools  and  were 
closely  associated  with  each  other  in  their  work.  Now  they 
WQrk  with  powerful  and  complex  machinery,  with  widely 
diversified  duties,  and  are  distributed  over  larger  areas  and 
often  widely  separated  from  each  other.  Under  present 
methods,  personal  injuries  have  become  a  prodigious  burden 
to  the  emplo^'es  engaged  in  our  industrial  and  commercial 
systems. 


330  APPENDIX 

The  master  should  be  made  wholly  responsible  for  injury 
to  the  servant  by  reason  of  the  negligence  of  a  co-servant. 
He  exercises  the  authority  of  choosing  the  employes  and  if 
made  responsible  for  their  acts  while  in  line  of  duty  he  will 
be  induced  to  exercise  the  highest  degree  of  care  in  selectmg 
competent  and  careful  persons  and  will  feel  bound  at  all 
times  to  exercise  over  employes  an  authority  and  influence 
which  will  compel  the  highest  degree  of  care  on  their  part 
for  the  safety  of  each  other  in  the  performance  of  their 
duties. 

These  sections  make  the  employer  liable  for  injury  caused 
by  defects  or  insufficiencies  in  the  roadbed,  tracks,  engines, 
machinery,  and  other  appliances  used  in  the  operation  of 
railroads.  Over  these  things  the  employe  has  absolutely 
no  authority.  The  employer  has  complete  authority  over 
them,  both  in  their  construction  and  in  their  maintenance. 
It  is  a  very  hard  rule,  indeed,  to  compel  men,  who  by  the 
exigencies  and  necessities  of  life  are  bound  to  labor,  to 
assume  the  risks  and  hazards  of  the  employment,  when 
these  risks  and  hazards  could  be  greatly  lessened  by  the 
exercise  of  proper  care  on  the  part  of  the  employer  in  pro- 
viding safe  and  proper  machinery  and  equipment  with 
which  the  employe  does  his  work.  We  believe  that  a  strict 
rule  of  liability  of  the  employer  to  the  employe  for  injuries 
received  for  defective  machinery  will  greatly  lessen  per- 
sonal injuries  on  that  account.  The  common-law  rules  of 
fellow-servants  and  assumption  of  risk  still  prevail  in  many 
of  the  States,  and  without  any  apparent  good  reason.  In 
recent  years  many  of  the  countries  of  Europe  have  adopted 
new  rules  of  liability,  which  greatly  relieve  the  harshness 
of  the  common  law  as  it  still  exists  in  some  of  the  States. 

In  1888  England  passed  an  act  which  abolished  the  doc- 
trine of  fellow-servant  with  reference  to  the  operation  of 
railroad  trains,  and  in  1897  it  extended  this  law  to  apply  to 
many  of  the  hazardous  employments  of  the  country. 

For  many  years  the  doctrine  in  Germany  has  been  yield- 
ing step  by  step  to  better  rules,  until  for  the  last  quarter  of 


REPORT   OF   HOUSE    JUDICIARY    COMMITTEE  331 

a  century  it  does  not  apply  to  any  of  the  hazardous  occupa- 
tions. 

In  1869  Au^stria  passed  a  law  making  railroad  companies 
liable  for  all  injuries  to  their  employes  except  where  the 
injury  was  due  to  the  victim's  own  negligence. 

The  Code  Napoleon  made  the  employer  answerable  for 
all  injuries  received  by  his  workmen,  and  this  code  is  still 
in  force  in  Belgium  and  Holland. 

Other  European  countries  have  from  time  to  time  made 
laws  fixing  the  liability  of  the  master  for  damages  caused 
by  the  negligent  act  of  his  servant. 

]\Iany  of  the  States  have  passed  laws  modifying  the  doc- 
trine as  changing  conditions  required  it  and  justice  to  the 
employe  demanded  it. 

Alabama  in  1885  eliminated  the  doctrine  so  far  as  it 
relates  to  railroads,  and  in  other  particulars. 

Arkansas  in  1893  qualified  the  doctrine  as  to  railroad 
employment, 

Georgia  in  1856  entirely  abolished  the  doctrine  as  to  rail- 
roads. 

Iowa  abolished  it  as  to  train  operatives  in  1862. 

Kansas  did  the  same  thing  in  1874. 

The  latest  statute  in  Wisconsin  on  the  subject  abolished 
the  fellow-servant  doctrine  as  to  employes  actually  engaged 
in  operating  trains. 

IVIinnesota  did  the  same  thing  in  1887. 

Florida,  Ohio,  Mississippi,  and  Texas  have  changed  the 
doctrine  to  the  advantage  of  the  employe. 

North  Carolina,  North  Dakota,  and  Massachusetts  have 
practically  eliminated  the  doctrine  as  regards  the  operation 
of  railroad  trains. 

Colorado  in  1901  abolished  the  doctrine  in  toto. 

Other  States  have  either  abolished  it  or  modified  it  as 
regards  the  operation  of  railroads. 

As  compared  with  the  law  now  in  force  in  other  countries 
and  in  many  of  the  States,  the  changes  made  in  the  law  of 
fellow-servant  by  this  bill  are  not  radical.     The  doctrine  as 


332  APPENDIX 

regards  the  hazardous  occupations  is  being  relegated  every- 
where. 

A  Federal  Statute  of  this  character  will  supplant  the 
numerous  State  Statutes  on  the  subject  so  far  as  they  relate 
to  interstate  commerce^  It  will  create  uniformity  through- 
out the  Union,  and  the  legal  status  of  such  employer's  lia- 
bility for  personal  injuries,  instead  of  being  subject  to 
numerous  rules,  will  be  fixed  by  one  rule  in  all  the  States. 

It  is  thought  that  the  adoption  of  the  rule,  as  provided  in 
this  section,  will  be  conducive  to  greater  care  in  the  opera- 
tion of  railroads.  As  it  is  now,  where  the  doctrine  of 
fellow-servant  is  in  force,  no  one  is  responsible  for  the 
injury  or  death  of  an  employe  if  caused  by  the  carelessness 
of  a  co-employe.  The  co-servant  who  is  guilty  of  negli- 
gence resulting  in  the  injury  may  be  liable,  but  as  a  rule 
he  is  not  responsible,  and  hence  the  injury  is  not  compen- 
sated. The  employe  is  not  held  by  the  employer  to  such 
strict  rules  of  caution  for  the  safety  of  his  co-employe, 
because  the  employer  is  not  bound  to  pay  the  damages  in 
case  of  injury.  If  he  were  held  liable  for  damages  for 
every  injury  occasioned  by  the  negligence  of  his  servant, 
he  would  impose  the  same  strict  rules  for  the  safety  of  his 
employes  as  he  does  for  the  safety  of  passengers  and  stran- 
gers. He  will  make  the  employment  of  his  servant  and  his 
retention  in  the  service  dependent  upon  the  exercise  of 
higher  care,  and  this  will  be  the  stronger  inducement  to  the 
employe  to  act  with  a  higher  regard  for  the  safety  of  his 
fellow- workmen. 

Section  3  is  a  modification  of  the  common-law  rule  of 
contributor}^  negligence.  It  does  not  abolish  the  law. 
Under  its  provisions  contributory  negligence  stiU  bars  a 
recovery  for  personal  injury  so  far  as  the  injury  is  due  to 
the  contributory  negligence  of  the  employe,  but  entitles 
the  employe  to  recover  for  the  injury  so  far  as  it  is  due  to 
the  negligence  of  the  employer.  It  differs  from  the  Act 
passed  by  Congress  in  June,  1906,  on  this  point,  in  this: 
That  law  provided  that  contributory  negligence  did  not  bar 
a  recovery  if  the  negligence  of  the  employe  was  slight  and 


REPORT  OF   HOUSE   JUDICIARY   COMMITTEE  333 

that  of  the  employer  was  gross  in  comparison.  That  law 
modified  the  common-law  rule  of  contributory  negligence 
and  also  contained  a  modification  of  the  common-law  doc- 
trine of  comparative  negligence.  We  are  unable  to  see  any 
justification  whatever  in  the  common-law  doctrine  of  com- 
parative negligence  anywhere.  It  is  the  only  rule  of  negli- 
gence that  permits  an  employe  to  recover  damages  for 
injury  to  which  his  own  negligence  contributed.  Com- 
parative negligence  is  absolutely  wrong  in  principle,  for 
the  reason  that  it  permits  the  employe  to  recover  full  dam- 
ages for  injury,  even  though  his  own  negligence  contributed 
to  it.  It  is  true,  as  the  law  states  it,  he  can  only  recover 
damages  when  his  contributory  negligence  is  slight  and  that 
of  the  employer  is  gross  in  comparison.  But  that  rule  does 
not  undertake  to  diminish  the  verdict  in  proportion  to  the 
negligence  of  the  employe.  This  may  be  said  in  behalf  of 
the  doctrine  of  contributory  negligence  in  its  common-law 
purity,  and  it  is  the  only  reason,  so  far  as  we  know,  that  has 
ever  been  assigned  for  its  existence :  It  tends  to  make  the 
employe  exercise  a  higher  degree  of  care  for  his  own  safety. 

If  that  is  a  good  reason  for  the  existence  of  that  rule,  then 
we  believe  that  Section  3  of  this  bill  is  a  very  great  improve- 
ment on  that  doctrine,  for  the  reason  that  it  imposes  the 
burden  of  the  employer's  negligence  on  the  employer,  and 
he  will  thus  be  induced  to  exercise  higher  care  in  the  selec- 
tion of  his  employes,  and  in  other  ways,  for  the  safety  of 
persons  in  his  employment.  If  the  law  imposes  on  the 
employe  the  burden  of  his  own  negligence,  that  is  certainly 
sufficient,  and  that  is  what  this  section  seeks  to  do,  and  it 
also  seeks  to  impose  upon  the  employer  the  burden  of  his 
negligence.  It  provides  that  contributory  negligence  shall 
not  bar  a  recovery  for  injury  due  to  the  negligence  of  the 
employer.  It  provides  that  the  jury  shall  diminish  the 
damages  suffered  by  the  injured  employe  in  proportion  to 
the  amount  of  negligence  attributable  to  such  employe. 

It  is  urged  by  some  that  such  a  provision  is  impracticable 
of  administration  and  that  juries  will  not  divide  the  dam- 
ages in  accordance  with  the  negligence  committed  by  each. 


334  APPENDIX 

The  same  objection  can  be  urged  against  the  provision  of 
the  bill  passed  by  Congress  in  1906,  Avhich  provided  that 
only  slight  negligence  should  not  bar  a  recovery,  but  that 
the  jury  should  diminish  damages  in  proportion  to  such 
slight  negligence.  Under  that  provision  the  jury  would 
have  the  same  difficulty,  if  any,  in  apportioning  the  dam- 
ages according  to  the  negligence  of  each  party.  We  submit, 
further,  that  this  section  of  the  bill  is  free  from  the  very 
unjust  principle  contained  in  the  common-law  doctrine  of 
comparative  negligence  which  allowed  the  employe  to 
recover  full  damages  for  injury  to  which  his  own  negligence 
contributed  in  some  degree.  It  is  not  a  just  criticism  of  a 
law,  conceding  the  righteousness  of  its  principles,  to  say 
that  it  is  impracticable  of  administration.  We  submit  that 
the  principle  in  this  section  is  ideal  justice,  against  which 
no  fair  argument  can  be  made.  It  is  better  that  legislatures 
pass  just  and  fair  laws,  even  though  they  may  be  diflScult 
of  administration  by  the  courts,  rather  than  to  pass  unjust 
and  unfair  laws  because  they  may  be  more  easily  adminis- 
tered by  the  courts.  Courts  ought  not  to  be  compelled  to 
administer  the  common-law  doctrine  of  contributory  negli- 
gence, which  puts  upon  the  employe  the  whole  burden  of 
negligence,  even  though  his  negligence  was  slight  and  that 
of  the  employer  was  gross.  That  law  might  to  some  extent 
induce  higher  care  on  the  part  of  the  employe,  but  in  the 
same  degree,  and  for  the  same  reason,  it  induces  the 
employer  to  have  less  regard  and  less  care  for  the  safety  of 
his  employes. 

It  is  urged  that  juries  under  this  law  will  wholly  ignore 
the  negligence  committed  by  the  employe  and  charge  all  the 
injury  to  the  negligence  of  the  employer.  We  do  not 
believe  that  this  will  be  the  result  of  the  administration  of 
this  section.  We  believe  it  will  appeal  to  juries  as  emi- 
nently just  and  they  will  undertake  to  enforce  it  literally 
to  the  best  of  their  skill.  If  juries  under  the  common-law 
rule  of  contributory  negligence  have  been  disposed  to  assess 
damages  in  spite  of  the  fact  that  the  defendant  contributed 
to  the  injury  by  his  own  negligence,  it  may  be  said  that  the 


REPORT   OF    HOUSE    JUDICIARY    COMMITTEE  335 

jury  recognizes  the  injustice  of  the  law  and  undertakes  to 
correct  it  by  what  they  consider  a  just  and  righteous  ver- 
dict. There  is  nothing  in  this  law  that  will  induce  such  a 
sentiment  in  the  minds  of  the  jury,  but  it  will  appeal  to 
them  as  the  true  principle,  and,  in  our  judgment,  they  will 
seek  to  apply  it  fairly  in  the  courts. 

Beach,  in  his  work  on  contributory  Negligence,  page  136, 
comments  on  the  law  as  provided  in  this  section  as  follows : 

"Much  may  be  said  in  favor  of  the  rule  which  counts  the 
plaintiff's  negligence  in  mitigation  of  the  damages  in  those 
cases  which  frequently  arise,  wherein,  on  one  hand,  a  real 
injury  has  been  suffered  by  the  plaintiff  by  reason  of  the 
culpable  negligence  of  the  defendant,  and  yet,  where,  on 
the  other  hand,  the  plaintiff's  conduct  was  such  as  to  some 
extent  contribute  to  the  injury,  but  in  so  small  a  degree 
that  to  impose  upon  him  the  entire  loss  seems  not  to  take  a 
just  account  of  the  defendant 's  negligence.  In  those  cases, 
which  may  be  denominated  'hard  cases,'  the  Georgia  and 
Tennessee  rule  in  mitigation  of  damages  without  necessarily 
sacrificing  the  principle  upon  which  the  law  as  to  contrib- 
utory negligence  rests  is  a  rule  against  which,  in  respect  of 
justice  and  humanity,  nothing  can  be  said.  Where  the 
severity  of  the  general  rule  might  refuse  the  plaintiff  any 
remedy  whatever,  as  the  sheer  injustice  of  the  rule,  as  laid 
down  in  Davis  v.  Mann,  would  impose  the  whole  liability 
upon  the  defendant,  it  is  quite  possible  to  conceive  a  case 
where  the  application  of  the  rule  which  mitigates  the  dam- 
ages in  proportion  to  the  plaintiff's  misconduct,  but  does 
not  decline  to  impose  them  at  all,  would  work  substantial 
justice  between  the  parties," 

Shearman  and  Redfield  on  the  Law  of  Negligence,  fifth 
edition,  page  158,  in  speaking  of  this  rule,  say : 

' '  This  is  substantially  an  adoption  of  the  admiralty  rule, 
which  is  certainly  nearer  ideal  justice,  if  juries  could  be 
trusted  to  act  upon  it," 

The  United  States  has  adhered  much  closer  to  the  common- 
law  doctrine  of  contributory  negligence  than  the  leading 
countries  of  Europe.     The  laws  of  England,  Germany,  and 


336  APPENDIX 

Italy  go  much  further  to  discharge  the  employe  from  the 
responsibility  of  his  own  act  than  does  the  common-law 
doctrine  of  comparative  negligence. 

The  laws  of  France,  Switzerland,  and  Russia  are  in  prac- 
tical accord  with  the  provisions  of  section  3  of  this  bill. 

The  rule  provided  for  in  this  section  is  recognized  to  some 
extent  in  this  country.  Maryland  and  some  of  the  other 
States  have  passed  statutes  seeking  to  divide  the  responsi- 
bility where  both  parties  are  guilty  of  negligence. 

The  provisions  of  this  section  are  certainly  just.  What 
can  be  more  fair  than  that  each  party  shall  suffer  the  con- 
sequences of  his  own  carelessness?  It  certainly  appeals 
more  strongly  to  the  fair  mind  than  the  proposition  that  the 
employe  shall  have  no  redress  whatever,  even  though  his 
injury  is  due  mainly  to  the  negligence  of  another.  As  a 
consequence  of  this  legislation,  we  believe  there  will  be 
fewer  accidents.  By  the  responsibility  imposed,  both  par- 
ties will  be  induced  to  the  exercise  of  greater  diligence,  and 
as  a  result  the  public  will  travel  and  property  will  be  trans- 
ported in  greater  safety. 

The  proviso  in  section  3  is  to  the  effect  that  contributory 
negligence  shall  not  be  charged  to  the  employe  if  he  is 
injured  or  killed  by  reason  of  the  violation,  by  the  employer, 
of  any  statute  enacted  for  the  safety  of  employes.  The 
effect  of  the  provision  is  to  make  a  violation  of  such  a 
statute  negligence  per  se  on  the  part  of  the  employer.  The 
courts  of  some  States  have  held  this  as  a  principle  of  the 
common-law.     Other  States  have  enacted  it  into  statute. 

Section  4  provides,  in  effect,  that  the  employe  shall  not  be 
charged  with  the  assumption  of  risk  in  case  he  is  injured  by 
reason  of  the  violation  of  the  employer  of  a  statute  enacted 
for  the  safety  of  his  employes.  This  section  likewise  makes 
the  violation  of  such  a  statute  negligence  per  se  on  the  part 
of  the  employer,  and  is  already  the  law  in  many  of  the 
States  of  the  Union. 

Section  5  renders  void  any  contract  or  rule  whereby  a 
common  carrier  seeks  to  exempt  itself  from  liability  cre- 
ated by  this  act.     Many  of  the  States  have  enacted  lawi^ 


REPORT   OF   HOUSE    JUDICIARY    COMMITTEE  337 

making  void  such  contracts  and  regulations,  and,  so  far  as 
we  are  informed,  these  statutes  have  been  sustained  by  the 
courts.  The  following  States  have  incorporated  into  their 
statutes  language  similar  to  the  language  contained  in  this 
bill  on  this  question:  Arkansas,  California,  Colorado, 
Florida,  Georgia,  Indiana,  Iowa,  Massachusetts,  Minnesota, 
Mississippi,  Montana,  Nebraska,  Nevada,  New  York,  North 
Carolina,  North  Dakota,  Ohio,  Oregon,  South  Carolina, 
South  Dakota,  Texas,  Virginia,  Wisconsin,  and  Wyoming. 
The  Supreme  Court  of  Ohio  held  that  a  contract  exempting 
a  railroad  company  from  liability  for  injuries  was  void 
under  the  common  law  as  against  public  safety.  Likewise 
the  Supreme  Court  of  Arkansas  and  the  Court  of  Appeals 
of  Virginia  have  held  the  same  doctrine.  Tlie  courts  of 
New  York  have  held  that  such  contracts,  though  based  on 
a  consideration,  are  void  as  against  public  policy.  The 
statutes  of  Ohio  and  Iowa  fixing  the  liability  of  employer 
to  employes,  containing  provisions  similar  to  this  section, 
have  been  held  constitutional  by  the  Federal  Courts, 
although  the  cases  in  Vv^hich  these  decisions  were  rendered 
did  not  expressly  turn  on  that  question.  The  courts  of  Ala- 
bama have  held  such  contracts  void,  regardless  of  statute. 
In  Georgia  and  Pennsylvania  such  contracts  have  been  held 
valid,  but  since  the  decision  in  Georgia  that  State  has 
adopted  a  statute  making  them  void. 

This  provision  is  necessary  in  order  to  mate  effective  sec- 
tions 1  and  2  of  the  bill.  Some  of  the  railroads  of  the 
country  insist  on  a  contract  with  their  employes  discharging 
the  company  from  liability  for  personal  injuries. 

In  any  event,  the  employes  of  many  of  the  common  car- 
riers of  the  country  are  to-day  working  under  a  contract 
of  employment  which  by  its  terms  releases  the  company 
from  liability  for  damages  arising  out  of  the  negligence  of 
other  employes.  As  an  illustration  we  quote  one  paragi^aph 
from  a  blank  form  of  application  for  a  situation  with  the 
American  Express  Company,  and  entitled  "Rules  govern^ 
ing  employment  by  this  company:" 

"I  do  further  agree,  in  consideration  of  my  employment 

Roberts  ijiabilities — 22 


338  APPENDIX 

by  said  American  Express  Company,  that  I  will  assume  all 
risks  of  accident  or  injury  which  I  shall  meet  with  or  sus- 
tain in  the  course  of  such  employment,  whether  occasioned 
by  the  negligence  of  said  company  or  any  of  its  members, 
officers,  agents,  or  employes,  or  otherwise;  and  that  in  case 
I  shall  at  any  time  suffer  any  such  injury,  I  will  at  once 
execute  and  deliver  to  said  company  a  good  and  sufficient 
release,  under  my  hand  and  seal,  of  all  claims,  demands, 
and  causes  of  action  arising  out  of  such  injury  or  connected 
therewith  or  resulting  therefrom ;  and  I  hereby  bind  myself, 
my  heirs,  executors,  and  administrators,  with  the  payment 
to  said  express  company,  on  demand,  of  any  sum  which  it 
may  be  compelled  to  pay  in  consequence  of  any  such  claim 
or  in  defending  the  same,  including  all  counsel  fees  and 
expenses  of  litigation  connected  therewith." 

While  many  of  the  States  have  enacted  statutes  making 
such  contracts  void,  yet  the  United  States  Supreme  Court, 
there  being  no  Federal  statute  on  the  subject,  have  held  a 
similar  contract  valid  in  the  case  of  Voigt  v.  Baltimore  and 
Ohio  Southwestern  Railroad  (176  U.  S.,  p.  498).  In  this 
case  the  railraad  company  entered  into  a  contract  with  an 
express  company  whereby  it  agreed  to  carry  the  business 
of  the  express  company,  to  furnish  it  with  cars  and  certain 
facilities  over  its  road,  and  to  carry  its  messengers,  in  con- 
sideration of  which  the  express  company  agreed  to  save 
harmless  the  railroad  company  for  all  claims  for  damages 
for  personal  injury  received  by  its  employes,  whether  the 
injuries  were  caused  by  the  negligence  of  the  railroad  com- 
pany or  otherwise. 

Voigt  entered  the  service  of  the  express  company  as  mes- 
senger, and  by  the  contract  of  his  emplojonent  he  agreed  to 
assume  all  the  risk  of  accident  and  injury  and  to  indemnify 
and  save  harmless  the  express  company  from  all  claims  that 
might  be  made  against  it  for  injury  he  might  suffer,  whether 
resulting  from  negligence  or  otherwise,  and  to  execute  a 
release  for  the  same. 

Voigt  was  injured  and  sued.     The  court  said : 

"He   was   not  constrained   to  enter   into   the   contract 


REPORT   OP    HOUSE    JUDICIARY    COMMITTEE  339 

whereby  the  railroad  company  was  exonerated  from  liabil- 
ity to  him,  but  entered  into  the  same  freely  and  voluntarily, 
and  obtained  the  benefit  of  it  by  securing  his  appointment 
as  such  messenger,  and  that  such  a  contract  did  not  contra- 
vene public  policy. ' ' 

In  the  case  of  O'Brien  v.  C.  and  N.  W.  Ry.  Co.  (Fed. 
Rep.,  vol.  116,  p.  502),  which  involved  the  statute  of  Iowa 
making  such  contracts  invalid,  the  court  said: 

"That  while  such  contracts  would  be  effective  to  protect 
the  railroad  company  from  liability  at  common-law,  under 
such  statutory  provisions  declaratory  of  the  public  policy 
of  the  State  they  were  invalid  and  constituted  no  defense  to 
an  action  against  it  for  the  death  of  the  messenger  occurring 
in  the  State  of  Iowa  by  reason  of  the  wrecking  of  the 
express  car  in  which  he  was  employed,  through  the  negli- 
gence and  want  of  ordinary  care  of  defendant  or  its  serv- 
ants, whether  the  messenger  be  regarded  as  an  employe  of 
the  defendant  or  not." 

This  section  of  the  bill,  however,  provides  that  the  com- 
mon carrier  may  set  off  against  any  claim  for  damages 
whatever  it  has  contributed  toward  such  insurance,  relief 
benefit,  or  indemnity  that  may  have  been  paid  to  the  injured 
employe,  which  would  seem  to  be  entirely  fair  and  aU  that 
ought  to  be  required  of  the  employe. 

Some  of  the  roads  of  the  country  have  established  what 
are  caUed  "relief  departments,"  which  seek  to  operate  a 
species  of  insurances  for  the  employe  against  the  hazards 
of  the  employment,  but,  so  far  as  we  know,  all  their  forms 
of  contracts,  used  by  these  relief  departments  to  insure  the 
employe,  discharge  the  company  from  every  possible  liabil- 
ity for  personal  injuries  to  the  employe.  This  release  is 
made  by  its  terms  of  agreement  in  consideration  of  the  con- 
tributions of  the  company  to  the  relief  fund. 

The  following  is  one  of  the  paragraphs  from  the  form  of 
application  for  membership  in  the  relief  department  used 
by  the  Baltimore  and  Ohio  Railroad  Company: 

"I  further  agree  that,  in  consideration  of  the  contribu- 
tions of  said  company  to  the  relief  department  and  of  the 


340  APPENDIX 

guaranty  by  it  of  the  payment  of  the  benefits  aforesaid, 
the  acceptance  of  benefits  from  such  relief  feature  for  the 
injury  or  death  shall  operate  as  a  release  of  all  claims 
against  said  company,  or  any  company  owning  or  operating 
its  branches  or  divisions,  or  any  company  over  whose  rail- 
road, right  of  way,  or  property  the  said  Baltimore  and  Ohio 
Railroad  Company  or  any  company  owning  or  operating  its 
branches  or  divisions  shall  have  the  right  to  run  or  operate 
its  engines  or  cars  or  send  its  employes  in  the  performance 
of  their  duty,  for  damages  by  reason  of  such  injury  or  death 
which  could  be  made  by  or  through  me ;  and  that  the  super- 
intendent may  require,  as  a  condition  precedent  to  the  pay- 
ment of  such  benefits,  that  all  acts  by  him  deemed  appro- 
priate or  necessary  to  effect  the  full  release  and  discharge 
of  the  said  companies  from  all  such  claims  be  done  by  those 
who  might  bring  suit  for  damages  by  reason  of  such  injury 
or  death ;  and  also  that  the  bringing  of  such  a  suit  by  me, 
my  beneficiary  or  legal  representative,  or  for  the  use  of  my 
beneficiary  alone,  or  with  others,  or  the  payment  by  any  of 
the  companies  aforesaid  of  damages  for  such  injury  or 
death  recovered  in  any  suit  or  determined  by  a  compromise 
or  any  costs  incurred  therein,  shall  operate  as  a  release  in 
full  to  the  relief  department  of  all  claims  by  reason  of 
membersliip  therein." 

The  form  of  other  application  used  by  other  companies 
are  similar  in  terms  to  the  cited,  and  make  acceptance  of 
benefits  from  said  fund  a  release  of  all  claims  for  damages 
for  injury  or  death. 

By  an  act  concerning  common  carriers  engaged  in  inteiv 
state  commerce  and  their  employes,  approved  June  1,  1898, 
known  as  the  ' '  arbitration  law, "  it  is  made  a  misdemeanor 
on  the  part  of  any  employer  subject  to  the  provisions  of  that 
act: 

' '  To  require  any  employe  or  any  person  seeking  employ- 
ment, as  a  condition  of  such  emplojnnent,  to  enter  into  a 
contract  whereby  such  employe  or  applicant  for  employ- 
ment shall  agree  to  contribute  to  any  fund  for  charitable, 
sociable,  or  beneficial  purposes;  to  release  such  employer 


REPORT   OF    HOUSE    JUDICIARY    COMMITTEE  341 

from  legal  liability  for  any  personal  injury  by  reason  of 
any  benefit  arising  from  the  employer's  contribution  to 
such  fund." 

We  believe  this  bill  meets  the  objections  of  the  Supreme 
Court  to  the  act  of  June  11,  1906,  known  as  the  "employers' 
liability  act,"  in  the  case  of  Howard,  administratrix,  etc., 
V.  Illinois  Central  Railroad  Cwnpany,  et  al.,  6  Cong.  Record, 
1st  Sess.  pp.  4434-4436. 


APPENDIX  E 

REPORT  OF  JUDICIARY  COMMITTEE  OF  HOUSE 

ON    AMENDMENTS    OF    1910    TO    FEDERAL 

EMPLOYERS'  LIABILITY  ACT  OF  1908 

The  Committee  on  the  Judiciary,  to  whom  was  referred 
the  bill  (H,  R.  17263)  to  amend  an  act  entitled,  "An  act 
relating  to  the  liability  of  common  carriers  by  railroad  to 
their  employes  in  certain  cases,"  approved  April  22,  1908, 
having  had  the  same  under  consideration,  beg  leave  to 
report  it  to  the  House  with  a  recommendation  that  the  bill 
do  pass. 

In  considering  the  advisability  of  amending  the  act  enti- 
tled "An  act  relating  to  the  liability  of  common  carriers 
by  railroads  to  their  employes  in  certain  cases,"  approved 
April  22,  1908,  it  is  important  at  the  outset  to  understand 
that  the  purpose  of  Congress  in  the  passage  of  this  act  was 
to  extend  further  protection  to  employes.  This  was  its 
manifest  purpose,  as  is  apparent  from  a  consideration  of 
the  circumstances  of  its  enactment.  It  is  manifest  from  a 
consideration  of  the  reports,  both  of  the  Senate  and  House 
committees,  when  the  measure  was  pending  before  those 
bodies  prior  to  its  enactment,  that  the  purpose  of  the 
statute  was  to  extend  and  enlarge  the  remedy  provided  by 
law  to  employes  engaged  in  interstate  commerce  in  cases 
of  death  or  injury  to  such  employes  while  engaged  in  such 
service.  No  purpose  or  intent  on  the  part  of  Congress  can 
be  found  to  limit  or  to  take  away  from  such  an  employe  any 
right  theretofore  existing  by  which  such  employes  were 
entitled  to  a  more  extended  remedy  than  that  conferred 
upon  them  by  the  act. 

The  effect  of  decisions  of  cases  so  far  adjudicated  under 

342 


HOUSE  COMMITTEE  REPORT  ON  1910  AMENDMENTS      343 

the  act  has  been  in  general  to  recognize  the  true  intent  of 
Congress  and  to  extend  and  make  more  ample  the  right  to 
recover  damages  for  death  or  injury  to  interstate  servants, 
yet  in  some  particulars  its  operation  has  been  to  limit  a 
recovery  which  otherwise  would  have  been  open  to  the 
employe  or  his  representative. 

One  result  of  the  passage  of  the  law  may  be  to  nullify 
State  laws  affording  a  remedy  in  certain  cases  for  death  or 
injury  in  railroad  service.  The  State  laws  which  had  been 
operative  and  which  were  valid  even  in  their  application 
to  those  engaged  in  service  in  interstate  commerce  appear 
to  have  been  rendered,  as  to  interstate  servants,  ineffective 
when  Congress  acted  upon  this  subject.  That  this  seems  to 
have  been  the  effect  of  the  passage  of  this  law  was  expressly 
decided  in  a  well-considered  opinion  by  Judge  Rogers  in 
the  case  of  Fulgam  v.  Midland  Valley  R.  Co.  (167  Fed.  660, 
p.  662)  : 

It  is  clear  that  the  act  of  April  22,  1908,  supra,  superseded  and 
took  the  place  of  all  state  statutes  regulating  relations  of  employers 
and  employees  engaged  in  interstate  commerce  by  railroads.  It 
covered  not  only  injuries  sustained  by  employees  engaged  in  that 
commerce  resulting  from  the  negligence  of  the  master  and  his  serv- 
ants, and  from  defects  in  the  designated  instrumentalities  in  use  in 
that  commerce,  but  also  dealt  with  contributory  and  comparative 
negligence  and  assumed  risk,  making,  in  certain  cases  at  least,  the 
master  an  insurer  of  the  safety  of  the  servant  while  in  his  employ- 
ment in  that  commerce.  It  covers  and  overlaps  the  whole  state 
legislation,  and   is  therefore   exclusive. 

All  state  legislation  on  that  subject  must  give  way  before  that 
act  (Miss.  Railroad  Commission  v.  lU.  Cent.  B.  R.  Co.,  203  U.  S. 
335,  27  Sup.  Ct.  90,  51  L.  Ed.  209;  Sherlock  et  al,  v.  Ailing, 
administrator,  93  U.  S.  104,  23  L.  Ed.  819).  These  last  cases 
serve  to  show  that,  until  Congress  has  acted  with  reference  to  the 
regulation  of  interstate  commerce,  state  statutes  regulating  the  rela- 
tions of  master  and  servant  and  incidentally  affecting  interstate 
commerce,  but  not  regulating  or  obstructing  it,  may  be  given  eifect; 
but  when  Congress  has  acted  upon  a  given  subject  state  legislation 
must  yield. 

In  Gulf,  Colorado,  etc.,  Railroad  Co.  v.  Hefley  (158  U.  S. 
99, 19  Sup.  Ct.  804,  39  L.  Ed.  910),  the  court  said: 


344  APPENDIX 

' '  When  a  state  statute  and  a  federal  statnte  operate  upon  the 
same  subject-matter,  and  prescribe  different  rules  concerning  it,  the 
state  statute  must  give  way." 

When  Congress  acted  upon  the  subject  of  the  regulation 
of  the  liability  of  interstate  carriers  for  injuries  to  their 
servants  engaged  in  interstate  commerce,  "the  State  was 
thereby  precluded  from  enacting  any  law  of  that  sort  which 
would  have  that  effect,  for  the  field  of  policy  and  legisla- 
ti(m  was  thus  assumed  by  Congress  and  withdrawn  from 
State  competency."  (Wisconsin  v.  C,  M.  &  St.  P.  Ry.  Co., 
117  N.  W.  686.) 

In  the  course  of  his  opinion  in  the  case  above  cited.  Jus- 
tice Dodge,  delivering  the  unanimous  opinion  of  the 
Supreme  Court  of  Wisconsin,  very  clearly  stated  this  doc- 
trine and  the  authority  upon  which  it  was  based,  as  fol- 
lows : 

Within  the  field  of  authorized  congressional  action  the  federal 
power  must,  in  the  nature  of  things,  be  supreme  in  aU  parts  of  the 
United  States.  ' '  This  Constitution,  and  the  laws  of  the  United 
States  which  shall  be  made  in  pursuance  thereof  *  *  *  shall  be 
the  supreme  law  of  the  land;  and  the  judges  in  every  State  shall  be 
bound  thereby,  anything  in  the  constitution  or  laws  of  any  state  to 
the  contrary  notwithstanding."  (Art.  VI,  par.  2,  Const.  U.  S.). 
In  Cooley  v.  Board  of  Wardens  (12  How.  299,  318),  it  was  said  of 
this  class  of  legislation :  "  It  is  not  the  mere  existence  of  such  power, 
but  its  exercise  by  Congress,  which  may  be  incompatible  with  the 
exercise  of  the  same  power  by  the  States,  and  that  the  States  may 
legislate  in  the  absence  of  congressional  legislation."  In  Pennsyl- 
vania v.  Wheeling,  etc.,  Co.  (18  How.  431),  where  a  state  law  au- 
thorized the  buUding  of  a  bridge  over  a  navigable  water,  it  was  de- 
clared that  even  in  the  matter  of  a  bridge,  "if  Congress  chooses  to 
act,  its  action  necessarily  precludes  the  action  of  the  State." 

In  United  States  v.  Colorado  &  N.  W.  R.  Co.  (157  Fed. 
Rep.  321,  330),  Sanborn,  J.,  remarks: 

' '  The  Constitution  reserved  to  the  nation  the  unlimited  power  to 
regulate  interstate  and  foreign  commerce,  and  if  that  power  can  not 
be  effectually  exercised  without  affecting  intrastate  commerce,  then 
Congress  may  undoubtedly  in  that  sense  regulate  intrastate  commerce 


HOUSE  COMMITTEE  REPORT  ON  1910  AMENDMENTS      345 

so  far  as  necessary  in  order  to  regulate  interstate  commerce  fully 
and  effectually.  *  *  *  That  power  is  not  subordinate,  but  is 
paramount  to  all  the  powers  of  the  States.  If  its  independent  and 
lawful  exercise  of  this  congressional  power  and  the  attempted  exercise 
by  a  State  of  any  of  its  powers  impinge  or  conflict,  the  former  must 
prevail  and  the  latter  must  give  way."  (See  also  Gibbons  v.  Ogden, 
9  Wheat.  1,  209,  210). 

It  will  be  observed  from  these  utterances  that  it  is  not  a  mere 
question  of  conflicting  laws  in  the  two  jurisdictions,  so  that  the  law 
of  a  State  will  be  valid  so  far  as  not  antagonistic  to  a  federal  law. 
The  question  is  more  properly  one  of  jurisdiction  over  the  subject, 
the  holding  being  that  within  the  second  class  of  subjects  above  out- 
lined silence  of  Congress  is  deemed  a  relegation  to  the  States  of  such 
jurisdiction  and  authority,  but  action  by  Congress  upon  the  particular 
subject  is  deemed  an  assertion  of  the  federal  power,  a  declaration 
of  the  policy  that  the  subject  shall  be  under  federal  and  not  state 
regulation,  and  that,  therefore,  the  power  shall  no  longer  rest  in  the 
State  to  exercise  that  authority  which  by  the  Constitution  of  the 
United  States  was  surrendered  to  the  Federal  Government  when  and 
if  Congress  deemed  its  exercise  advisable. 

In  a  recent  decision  of  the  Court  of  Civil  Appeals,  State 
of  Texas,  the  court  unanimously  stated  this  doctrine  as 
follows : 

It  is  well  settled  that  the  power  of  Congress  to  regulate  interstate 
commerce  under  the  provisions  of  the  Constitution  before  mentioned  is 
plenary  and  includes  the  power  to  prescribe  the  qualifications,  duties, 
and  liabilities  of  employees  of  railway  companies  engaged  in  inter- 
state commerce,  and  any  legislation  by  Congress  on  such  subject 
supersedes  any  state  law  upon  the  same  subject.  (Railway  Co.  v. 
Alabama,  128  U.  S.  99;  Howard  v.  Railway  Co.,  207  U.  S.  4630 

The  constitutional  right  of  Congress  to  legislate  upon  this  subject 
having  been  exercised  by  that  body,  the  right  of  the  State  to  invade 
this  field  of  legislation  ceased,  or,  at  all  events,  no  act  of  a  state  legis- 
lature in  conflict  with  the  act  of  Congress  upon  the  same  subject  can 
be  held  valid.  The  supreme  courts  of  Missouri  and  Wisconsin  in 
passing  upon  the  validity  of  statutes  of  said  States  similar  to  the  act 
we  are  considering,  hold  such  statutes  void  upon  the  ground  of  con- 
flict with  the  act  of  Congress  before  mentioned.  (State  v.  Mo.  Pac. 
Ry.  Co,,  111  S.  W.  500;  State  v.  C.  M.  &  St.  P.  Ry.  Co.,  117  N.  W. 
686.) 

Judge  Cooley,  in  his  work  on  Constitutional  Limitations, 
seventh  edition,  856,  said: 


346  •  APPENDIX 

It  is  not  doubted  that  Congress  has  the  power  to  go  beyond  the 
general  regulation  of  commerce  which  it  is  accustomed  to  establish, 
and  to  descend  to  the  most  minute  directions,  if  it  shall  be  deemed 
advisable;  and  that  to  whatever  extent  ground  shall  be  covered  by 
these  directions,  the  exercise  of  state  power  is  excluded. 

It  is  therefore  undoubtedly  the  law  that  congressional 
action  upon  the  liability  of  carriers  engaged  in  interstate 
commerce,  for  injuries  to  their  employes,  supersedes  all 
State  legislation  upon  the  same  subject,  and  renders  them, 
as  long  as  the  Federal  law  remains  in  operation,  of  no  avail 
as  providing  a  legal  remedy. 

Many  of  the  States  provide  by  statute  for  the  survival  of 
any  action  which  the  deceased  may  have  had  for  the  injury 
to  his  estate,  and  for  any  expenditures  during  his  lifetime 
resulting  from  the  injury. 

In  the  phraseology  of  the  existing  Employers'  Liability 
Act — that  is,  the  Act  of  April  22, 1908 — the  expression  used 
is,  as  to  the  question  now  under  consideration : 

Shall  be  liable  in  damages  *  *  *  in  case  of  the  death  of  such 
employee,  to  his  or  her  personal  representative  for  the  benefit  of  the 
surviving  widow  or  husband  and  children  of  such  employee;  and  if 
none,  then  of  such  employee's  parents;  and  if  none,  then  of  the  next 
of  kin  dependent  upon  such  employee,  for  such  injury  or  death  re- 
sulting in  whole  or  in  part  from  the  negligence  of  any  of  its  officers, 
agents,  employees,     *     *     *. " 

In  the  case  of  Fulgam  v.  Midland  VaUey  R.  R.  Company, 
hereinbefore  cited,  the  court  said: 

In  the  opinion  of  the  court,  right  of  action  given  to  the  injured 
employee  by  the  act  of  April  22,  1908,  does  not  survive  to  his  personal 
representative  in  the  event  of  his  death,  but,  at  common  law,  perishes 
with  the  injured  person. 

In  the  case  of  Walsh,  admx.,  v.  New  York,  New  Haven 
&  Hartford  Railroad  Company,  Circuit  Judge  LoweU, 
who  delivered  the  opinion  of  the  court,  said  in  a  case  arising 
under  the  Employers'  Liability  Act  of  April  22,  1908,  after 
quoting  the  case  of  Fulgam  v.  Midland  Valley  R.  R.  Co. 
(167  Fed.  660)  : 

The  defendant  has  further  demurred  to  counts  one  and  four,  con- 


HOUSE  COMMITTEE  REPORT  ON  1910  AMENDMENTS      347 

tending  that  the  employee's  cause  of  action  to  recover  for  his  con- 
scious suffering  did  not  survive  to  his  administratrix,  although  the 
existence  of  some  of  the  statutory  relatives  was  alleged.  As  the 
cause  of  action  is  given  by  a  federal  statute,  this  court  can  not  have 
recourse  to  a  state  statute  in  order  to  determine  whether  the  cause 
of  action  survives  or  not.  (Schreiber  v.  Sharpless,  110  U.  S.  76,  80; 
B.  &  O.  R.  E.  v.  Joy,  17,3  U.  S.  226,  230;  U.  S.  v.  DeGoer,  38  Fed.  80; 
U.  S.  V.  Eiley,  104  Fed.  275.)  Revised  Statutes,  section  955,  provides 
that  ' '  When  either  of  the  parties,  whether  jslaintiff  or  petitioner,  or 
defendant,  in  any  suit  in  any  court  of  the  United  States,  dies  before 
final  judgment,  the  executor  or  administrator  of  such  deceased  party 
may,  in  case  the  cause  of  action  survives  by  law,  prosecute  or  defend 
any  such  suit  to  final  judgment."  This  section  does  not  itself  pro- 
vide what  causes  of  action  shall  survive,  but  in  the  absence  of  other 
controlling  statute  leaves  the  matter  to  the  common  law.  In  the  case 
at  bar,  therefore,  the  state  statutes  are  inapplicable.  There  is  no 
general  federal  statute,  and  the  particular  statute  in  question,  the  act 
of  1908,  says  nothing  about  survival. 

Thus  remitted  to  the  common  law,  at  which  survival  is  out  of  the 
question,  we  must  here  hold  that  the  cause  of  action  did  not  survive 
and  so  that  counts  one  and  four  are  demurrable.  (Fulgam  v.  Mid- 
land VaUey  Co.,  167  Fed.  660.)  The  court  is  justified  in  saying  that 
this  result  has  been  reached  with  reluctance.  The  maxim  "Actio 
personalis  moritur  cum  persona ' '  has  not  always  commended  itself. 
(Pollock  on  Torts,  Webb's  ed.,  p.  71.)  The  survival  of  the  cause  of 
action  in  this  case  is  allowed  by  the  statutes  of  many  States.  That 
one  who  has  suffered  in  body  and  in  purse  by  the  fault  of  another, 
and  so  has  a  cause  of  action  against  the  wrongdoer,  should,  as  to  his 
own  estate,  be  dejirived  of  this  remedy  by  the  delays  of  the  law,  or 
without  such  delay,  by  his  death,  before  or  after  action  brought, 
whether  connected  or  unconnected  with  his  first  injury,  seems  to  me, 
as  to  Sir  Frederick  PoUock,  a  barbarous  rule.  The  intent  or  the 
oversight  of  the  legislature  has  established  the  ride  in  this  case. 

The  language  of  the  statute  should  be  made  clear  so  that 
the  uncertainty  and  obscurity  suggested  by  Judge  Lowell 
would  be  removed.  So  important  a  statute  should  be  made 
so  certain  in  its  terms  that  the  intent  of  Congress  may  be 
made  manifest  and  clear. 

It  certainly  should  be  as  broad,  as  comprehensive,  and  as 
inclusive  in  its  terms  as  any  of  the  similar  remedial  statutes 
existing  in  any  of  the  States,  which  are  suspended  in  their 
operation  by  force  of  the  Federal  legislation  upon  the 
subject. 


APPENDIX  F 

REPORT  OF  JUDICIARY  COMMITTEE  OP  SENATE 

ON    AMENDMENTS    OF    1910    TO    FEDERAL 

EMPLOYERS'  LIABILITY  ACT  OF  1908 

The  Committee  on  the  Judiciary,  having  under  considera- 
tion House  bill  17263,  reports  as  follows : 

It  is  of  importance  at  the  outset  that  Congress  give  care- 
ful and  serious  consideration  to  remedying  any  defects  in 
the  practical  operation  of  the  Employers'  Liability  Law 
from  time  to  time  as  such  defects  are  developed  by  proceed- 
ings in  court.  This  serious  attention  seems  demanded 
because  the  good  faith  of  Congress  in  passing  the  original 
act  has  been  made  the  subject  of  attack  in  a  publication 
which  has  been  given  wide  circulation  among  railroad  coun- 
sel of  the  country.  At  page  83  of  this  publication  entitled, 
"Unconstitutionality  of  the  Federal  Employers'  Liability 
Act,"  published  by  the  Price,  Lee  &  Adkins  Company,  in 
the  course  of  an  argument  of  Mr.  Edward  D.  Robbins,  gen- 
eral counsel  of  the  New  York,  New  Haven  &  Hartford 
Railroad  Company,  in  two  cases,  Mondou  v.  New  York,  New 
Haven  &  Hartford  Railroad  Company,  and  Hoxie  v.  New 
York,  New  Haven  &  Hartford  Railroad  Company  (73  Atl. 
Rep,  754) ,  appears  the  following : 

Does  any  member  of  this  court  believe  that  this  statute  would  ever 
have  been  passed  except  on  the  eve  of  a  presidential  election  under 
the  influence  of  the  great  railvpay  unions  of  this  country?  If  this  act 
did  not  have  so  many  votes  behind  it,  would  the  executive  department 
of  the  United  States  be  here,  participating  in  private  litigation,  for 
the  purpose  of  defending  its  constitutionality? 

If  there  ever  was  a  case  in  which  the  courts  might  properly  be 
appealed  to,  to  set  up  the  fundamental  "law  of  the  land"  as  a  bul- 
wark against  the  arbitrary  exercise  of  power  by  a  Democratic  major- 

348 


SENATE   JUDICIARY    COMMITTEE   EEPOET  349 

ity  and  by  elected  Representatives  who  fear  that  majority,  I  think  this 
is  that  case. 

We.  may  remark  in  passing  that  this  gratuitous  statement 
could  have  no  proper  place  in  a  legal  discussion,  for  the 
Supreme  Court  of  the  United  States  said  in  the  McCray  case 

(196  U.  S.  27)  — 

the  decisions  of  this  court  from  the  beginning  lend  no  support  what- 
ever to  the  assumption  that  the  judiciary  may  restrain  the  exercise 
of  lawful  power  on  the  assumption  that  a  wrongful  purpose  or  motive 
has  caused  the  power  to  be  exerted. 

As  such  an  argument  could  receive  no  recognition  from 
any  court  as  a  basis  of  judicial  action,  as  has  been  pointed 
out  by  the  Supreme  Court  in  the  McCray  case,  it  is  strange 
that  it  should  find  its  place  in  the  presentation  of  a  serious 
matter  to  a  court.  This  subject  is  referred  to  here  only 
for  the  purpose  of  calling  upon  Congress  to  make  entirely 
manifest  the  good  faith  of  the  legislature  in  the  enactment 
of  the  Employers'  Liability  Law,  which  places  such  strin- 
gent liability  upon  the  railroads  for  injuries  to  their 
employes  as  to  compel  the  highest  safeguarding  of  the  lives 
and  limbs  of  the  men  in  this  dangerous  employment.  The 
tremendous  loss  of  life  and  limb  on  the  railroads  of  this 
country  is  appalling.  The  total  casualties  to  train  men  of 
the  interstate  railroads  of  the  United  States  for  the  year 
1908  was  281,645. 

It  was  the  intention  of  Congress  in  the  enactment  of  this 
law  originally,  and  it  may  be  presumed  to  be  the  intention 
of  the  present  Congress  to  shift  the  burden  of  the  loss  result- 
ing from  these  casualties  from  ' '  those  least  able  to  bear  it, ' ' 
and  place  it  upon  those  who  can,  as  the  Supreme  Court  said 
in  the  Taylor  case  (211  U.  S.  281),  "measurably  control 
their  causes." 

The  passage  of  the  original  act  and  the  perfection  thereof 
by  the  amendments  herein  proposed,  stand  forth  as  a  dec- 
laration of  public,  policy  to  radically  change  as  far  as  con- 
gressional power  can  extend,  those  rules  of  the  common  law 
which  the  President  in  a  recent  speech  at  Chicago  eharac- 


350  APPENDIX 

terized  as  "unjust."  President  Taft,  in  his  address  at 
Chicago,  September  16,  1909,  referred  "to  the  continuance 
of  unjust  rules  of  law  exempting  employers  from  liability 
for  accidents  to  laborers." 

This  public  policy  which  we  now  declare  is  based  upon 
the  failure  of  the  common-law  rules  as  to  liability  for  acci- 
dent to  meet  the  modern  industrial  conditions,  and  is  based 
not  alone  upon  the  failure  of  these  rules  in  the  United 
States,  but  their  failure  in  other  countries  as  well.  Mr. 
Asquith,  present  prime  minister  of  England,  said: 

It  was  revolting  to  sentiment  and  judgment  that  men  who  met  with 
accidents  through  the  necessary  exigencies  of  daily  occupation,  should 
be  a  charge  upon  tlieir  own  families. 

The  passage  of  the  law  was  urged  upon  the  strongest  and 
highest  considerations  of  justice  and  promotion  of  the  pub- 
lic welfare.  It  was  largely  influenced  by  the  strong  mes- 
sage of  President  Roosevelt  to  the  Sixtieth  Congress  in 
December,  1907,  in  which  the  basis  of  the  legislation  was 
clearly  and  strongly  placed  upon  the  ground  of  justice  to 
the  railroad  workmen  of  this  countiy  and  in  which  legis- 
lation was  urged  to  the  limit  of  congressional  power  upon 
this  subject.     In  the  message  President  Roosevelt  said: 

The  practice  of  putting  the  entire  burden  of  loss  to  life  or  limb  upon 
the  victim  or  the  victim 's  family  is  a  form  of  social  injustice  in  which 
the  United  States  stands  in  unenviable  prominence.  In  both  our  fed- 
eral and  our  state  legislation  we  have,  with  few  exceptions,  scarcely 
gone  farther  than  the  repeal  of  the  fellow-servant  principle  of  the  old 
law  of  liability,  and  in  some  of  our  States  even  this  slight  modifica- 
tion of  a  completely  outgrown  principle  has  not  yet  been  secured.  The 
legislation  of  the  rest  of  the  industrial  world  stands  out  in  striking 
contrast  to  our  backwardness  in  this  respect.  Since  1895  practically 
every  country  in  Europe,  together  with  Great  Britain,  New  Zealand, 
Austria,  British  Columbia,  and  the  Cape  of  Good  Hope,  has  enacted 
legislation  embodying  in  one  form  or  another  the  complete  recogni- 
tion of  the  principle  which  places  upon  the  employer  the  entire  trade 
risk  in  the  various  lines  of  industry. 

In  the  second  volume  of  Labatt  on  "Master  and  Serv- 
ant," at  page  1325,  the  learned  author,  after  an  able  discus- 


SENATE   JUDICIARY    COMMITTEE    REPORT  351 

sion  of  the  reasons  given  by  the  courts  of  the  doctrine  deny- 
ing a  remedy  to  servants  injured  by  the  negligence  of 
fellow-servants,  says : 

It  would  appear,  therefore,  that  the  doctrine  of  common  employment 
stands  in  the  singular  predicament  that  it  rests  very  largely,  if  not 
entirely,  upon  a  basis  of  suggested  facts  which  we  are  asked  to  accept 
upon  the  mere  ipse  dixit  of  a  certain  number  of  gentlemen  who  have 
attained  greater  or  less  distinction  in  a  profession  which,  to  say  the 
very  least,  does  not  specially  qualify  them  to  form  a  reliable  opinion 
in  respect  to  the  subject-matter. 

This  situation,  which  would,  in  any  event,  be  extremely  unsatis- 
factory, is  reduced  to  something  like  an  absurdity  by  the  fact  that  the 
judicial  theory  as  to  the  supposed  inevitable  consequences  of  allowing 
servants  to  recover  for  the  negligence  of  their  coemployes  has  long 
since  been  exploded  by  the  logic  of  actual  occurrences,  the  significance 
of  which  is  unmistakable.  In  England  and  her  colonies,  as  well  as  in 
America,  statutes  have  been  passed  which  have  greatly  restricted 
the  operation  of  the  doctrine  of  common  employment.  (See  Chapters 
XXXVII-XL,  post.)  No  one  would  have  the  hardihood  to  maintain,  in 
the  absence  of  any  specific  evidence  pointing  to  that  conclusion,  that, 
as  a  result  of  the  legislation,  servants  have  become  to  a  marked  degree 
less  careful  and  efficient,  or  that  industrial  development  has  been 
crippled  and  retarded  to  an  appreciable  extent.  The  practical  infer- 
ence is  manifest.  If,  in  countries  where  the  doctrine  of  common  em- 
ployment has  been  more  or  less  circumscribed,  none  of  the  evil  results 
which  it  is  declared  to  have  obviated  can  be  detected,  it  may  be  safely 
concluded  that  no  harm  would  have  been  produced  if  the  doctrine 
had  never  been  applied,  and  that  no  harm  will  result  if  it  should  be 
entirely  abrogated  by  the  legislatures,  the  only  authority  by  which 
such  a  change  in  the  law  can  now  be  effected. 

This  general  consideration  of  the  importance  of  the  sub- 
ject involved  in  the  legislation  and  the  justice  of  the  rule 
which  Congress  has  established  upon  this  subject  is  intro- 
ductory to  the  specific  questions  involved  in  the  pending 
measure.  These  questions  have  been  so  thoroughly  covered 
and  fully  treated  by  the  report  of  the  House  committee  that 
we  quote  and  adopt  quite  fully  the  discussion  on  that  sub- 
ject in  the  House  committee  report. 

The  proposed  amendments  to  the  employers'  liability  bill 
may  be  considered  under  three  heads:  First,  as  to  the 
venue  of  such  an  action ;  second,  as  to  the  concurrent  juris- 


352  APPENDIX 

diction  of  the  courts  of  the  several  States ;  and,  third,  as  to 
the  survival  of  the  right  of  action. 

(1)  As  to  venue.  The  amendment  proposed  as  to  insert- 
ing in  section  6  after  the  words  therein,  "that  no  such 
action  shall  be  maintained  under  this  act  unless  commenced 
within  two  years  from  the  day  cause  of  action  accrued, ' '  the 
following : 

Under  this  act  an  action  may  be  brought  in  a  circuit  court  of  the 
United  States,  in  the  district  of  the  residence  of  either  plaintiff  or  the 
defendant,  or  in  which  the  cause  of  action  arose,  or  in  which  the 
defendant  shall  be  found  at  the  time  of  the  commencement  of  such 
action. 

In  his  special  message  of  January  7,  1910,  President  Taft, 
after  referring  to  a  proposed  amendment  to  give  the  Inter- 
state Commerce  Commission  power  to  determine  the  uni- 
form construction  of  all  steps,  ladders,  hand  brakes,  etc., 
said: 

The  question  has  arisen  in  the  operation  of  the  interstate  commerce 
employers '  liability  act  as  to  whether  suit  can  be  brought  against  the 
employer  company  in  any  place  other  than  of  its  home  office.  The 
right  to  bring  the  suit  under  this  act  should  be  as  easy  of  enforcement 
as  the  right  of  a  private  person  not  in  the  company's  employ  to  sue 
on  an  ordinary  claim,  and  process  in  such  suit  should  be  sufficiently 
served  if  upon  the  station  agent  of  the  company  upon  whom  service  is 
authorized  to  be  made  to  bind  the  company  in  ordinary  actions  arising 
under  state  laws.  Bills  for  both  the  foregoing  purposes  have  been 
considered  by  the  House  of  Eepresentatives,  and  have  been  passed,  and 
are  now  before  the  Interstate  Commerce  Committee  of  the  Senate.  I 
earnestly  urge  that  they  be  enacted  into  law. 

AMENDMENT     AS     TO     JURISDICTION  —  PLACE 
WHERE  SUIT  MAY  BE  BROUGHT 

This  amendment  is  necessary  in  order  to  avoid  great 
inconvenience  to  suitors  and  to  make  it  unnecessary  for  an 
injured  plaintiff  to  proceed  only  in  the  jurisdiction  in  which 
the  defendant  corporation  is  an  "inhabitant." 

This  is  held  by  the  courts  to  be  the  jurisdiction  in  which 
the  charter  of  the  defendant  corporation  was  issued.     This 


SENATE   JUDICIARY    COMMITTEE    REPORT  353 

may  be  at  a  place  in  a  distant  State  from  the  home  of  the 
plaintiff,  and  may  be  a  thousand  miles  or  more  from  the 
place  where  the  injury  was  occasioned. 

The  extreme  difficulty,  if  not  impossibility,  of  a  poor  man 
who  is  injured  while  in  railroad  employ,  securing  the 
attendance  of  the  necessary  witnesses  at  such  a  distant  point 
makes  the  remedy  given  by  the  law  of  little  avail  under 
such  circumstances. 

That  such  is  the  state  of  law  is  established  by  reference 
to  the  case  of  Cound  v.  Atchison,  Topeka  &  Santa  Fe  Rail- 
way Company,  decided  November  6,  1909,  in  the  United 
States  Circuit  Court  for  the  El  Paso  division  of  the  western 
district  of  Texas  by  Judge  IMaxey.  Judge  Maxey  in  the 
case  before  him  sustained  the  railroad's  plea  to  the  juris- 
diction and  dismissed  a  suit  brought  in  Texas  under  the 
Employers'  Liability  Act  on  tlie  ground  that  there  was 
diversity  of  citizenship  in  a  suit  based  on  a  law  of  the 
United  States. 

In  his  opinion  Judge  Maxey  says : 

Eeferring  to  the  statute  and  eliminating  the  federal  feature  of  the 
present  case,  the  jurisdiction  of  the  court  would  be  clear  beyond  con- 
troversy, since  in  that  case  the  jurisdiction  would  be  founded  only 
on  the  fact  of  diverse  citizenship.  But  here  there  appear  two  sources 
of  jurisdiction,  the  one  founded  on  diverse  citizenship  and  the  other 
upon  the  fact  that  the  suit  arises  under  a  law  of  the  United  States. 
In  the  former  case  the  statute  authorizes  suit  to  be  brought  in  the 
district  of  the  residence  of  either  the  plaintiff  or  the  defendant, 
where  the  jurisdiction  is  founded  only  on  the  fact  that  the  action  is 
between  citizens  of  different  States ;  while  in  the  latter  suit  must  be 
brought  in  the  district  of  which  the  defendant  is  an  inhabitant. 

The  position  taken  by  Judge  JNIaxey  in  the  case  just  cited 
is  fortified  by  the  opinion  of  the  Supreme  Court  of  the 
United  States  in  the  case  of  J\Iacon  Grocery  Co.  v.  Atlantic 
Coast  Line  Railroad  et  al.,  decided  within  a  few  weeks. 

It  seems  clear  from  these  decisions  that  a  suit  in  a  Federal 
court  under  this  law,  where  jurisdiction  is  founded  on  the 
fact  that  the   case   involves  a   Federal .  statute,   must   be 

Hoberts  Liabilities^vlS 


354  APPENDIX 

brought  in  the  district  of  which  the  defendant  is  an  inhab- 
itant. 

No  argument  is  necessary  to  convince  that  this  is  a  grave 
injustice  to  the  plaintiff. 

Such  an  embarrassing  situation  ought  not  to  be  permitted 
to  exist  where  any  plaintiff  is  proceeding  in  a  Federal  court 
on  a  right  based  on  the  law  of  the  United  States. 

But  to  permit  it  to  be  a  practical  barrier  to  the  mainte- 
nance of  an  action  for  death  or  personal  injuries  of  employes 
who  may  be  presumed  to  be  unable  to  meet  the  expense  of 
presenting  their  case  in  a  jurisdiction  far  from  their  homes 
would  be  an  injustice  too  grave  and  serious  to  be  longer 
permitted  to  exist. 

CONCURRENT   JURISDICTION   OF   STATE   COURTS 

It  is  proposed  to  further  amend  the  act  by  making  the 
jurisdiction  of  the  courts  of  the  United  States  ' '  concurrent 
with  the  courts  of  the  several  States." 

This  is  proposed  in  order  that  there  shall  be  no  excuse  for 
courts  of  the  States  to  follow  in  the  error  of  the  Supreme 
Court  of  Errors  of  Connecticut  in  the  case  of  Hoxie  v. 
N.  Y.,  N.  H.  &  H.  R.  R.  Co.  (73  Atlantic  Rep.  754),  in 
which  case  the  court  declined  jurisdiction  upon  the  ground, 
i7iter  alia,  that  Congress  did  not  intend  that  jurisdiction 
of  cases  arising  under  the  act  should  be  assumed  by  state 
courts. 

It  is  clear  under  the  decisions  of  the  Supreme  Court  of 
the  United  States  that  this  conclusion  of  the  Connecticut 
court  is  erroneous.  And  the  reasons  recited  by  the  Con- 
necticut court  lead  to  an  opposite  conclusion  from  that 
which  the  opinion  declares  upon  the  subject.  But  no  harm 
can  come,  and  much  injustice  and  wrong  to  suitors  may  be 
prevented  by  an  express  declaration  that  there  is  no  intent 
on  the  part  of  Congress  to  confine  remedial  actions  brought 
under  the  Employers'  Liability  Act  to  the  courts  of  the 
United  States. 

In  declaring  that  the  jurisdiction  of  the  United  States 


SENATE   JUDICIARY    COMMITTEE   REPORT  355 

courts  shall  be  "concurrent  with  the  courts  of  the  several 
States, ' '  Congress  is  clearly  within  its  rights  and  powers. 

The  first  precedent  for  such  declaration  is  found  in  the 
action  of  the  First  Congress.  In  the  act  of  September  24, 
1789,  it  was  enacted  that  the  district  courts  of  the  United 
States — • 

shall  also  have  cognizance,  concurrent  with  the  courts  of  the  several 
States,  or  the  circuit  courts,  as  the  case  may  be,  of  all  causes  where 
an  alien  sues  for  a  tort  only  in  violation  of  the  law  of  nations  or  a 
treaty  of  the  United  States,  (c)  And  shall  also  have  cognizance,  con- 
current as  last  mentioned,  of  all  suits  at  common  law  where  the  United 
States  sue,  and  the  matter  in  dispute  amounts,  exclusive  of  costs,  to 
the  sum  or  value  of  one  hundred  dollars  (U.  S.  Stat.  L.,  Vol.  I,  p.  77). 

This  precedent  has  repeatedly  been  followed  in  Federal 
legislation.  Thus  early  was  it  established  by  those  who 
understood  the  full  scope  and  operation  of  the  Constitution 
of  the  United  States,  that  the  "supreme  law  of  the  land" 
did  not  lose  any  of  its  imperative  obligation  at  the  door  of 
a  state  court. 

The  express  declaration  of  the  United  States  Constitution 
says  of  laws  enacted  by  Congress  in  pursuance  of  its  dele- 
gated powers, ' '  and  the  judges  in  every  State  shall  be  bound 
thereby,  anything  in  the  constitution  or  laws  of  any  State 
to  the  contrary  notwithstanding." 

This  declaration  of  the  Constitution  is  not  meaningless. 
That  the  "judges  in  every  State  shall  be  bound"  by  a  Fed- 
eral law  imposes  a  binding  duty  to  enforce  it. 

This  provision  leaves  no  discretion  to  a  judge  of  a  state 
court  to  deny  justice  to  a  suitor  because  his  right  is  based  on 
a  Federal  law. 

The  Connecticut  court  says  that  this  Federal  statute 
known  as  the  Employers'  Liability  Act,  "would  also  compel 
courts  established  by  a  sovereign  power,  and  maintained  at 
its  expense  for  the  enforcement  of  what  is  deemed  justice, 
to  enforce  what  it  deemed  injustice."  We  may  disregard 
for  the  moment  the  suggestion  of  the  injustice  of  a  particu- 
lar statute.  The  local  opinion  of  the  justice  of  a  particular 
law  is  no  obstacle  to  its  enforcement  if  it  be  a  binding  law. 


856  APPENDIX 

We  will  therefore  consider  the  proposition  solely  as  if  the 
factor  of  local  opinion  as  to  its  justice  was  eliminated  from 
controversy.  A  court  may  err  in  its  estimate  of  what  its 
State  really  did  "consider  injustice." 

Does  the  fact  that  state  courts  are  ' '  established  by  a  sov- 
ereign power  and  maintained  at  its  expense ' '  permit  denial 
of  enforcement  in  such  courts  af  a  right  founded  on  a  Fed- 
eral statute? 

This  question  is  squarely  answered  in  a  case  which, 
strangely  enough,  is  cited  by  the  court  in  the  Hoxie  case. 
(Clafliu  V.  Houseman,  93  U.  S.  130.)  In  this  case  Mr.  Jus- 
tice Bradley  says: 

The  fact  that  a  state  court  derives  its  existence  and  functions  from 
the  state  laws  is  no  reason  why  it  should  not  afford  relief,  because  it 
is  subject  also  to  the  laws  of  the  United  States,  and  is  just  as  much 
bound  to  recognize  these  as  operative  within  the  State  as  it  is  to 
recognize  the  state  laws. 

Chancellor  Kent,  in  his  Commentaries  (1  Com.  400), 
says: 

In  judicial  matters  the  concurrent  jurisdiction  of  the  state 
tribunals  depends  altogether  upon  the  pleasure  of  Congress,  and  may- 
be revoked  and  extinguished  whenever  they  think  proper,  in  every  case 
in  which  the  subject-matter  can  constitutionally  be  made  cognizable 
in  the  federal  courts;  and  that,  without  an  express  provision  to  the 
contrary,  the  state  courts  will  retain  a  concurrent  jurisdiction  in  all 
cases  where  they  had  jurisdiction  originally  over  the  subject-matter. 

To  quote  from  Cooley  's  Principles  of  Constitutional  Law, 
pages  32-33 : 

A  state  law  must  yield  to  the  supreme  law,  whether  expressed  in 
the  Constitution  of  the  United  States  or  in  any  of  its  laws  or  treaties, 
so  far  as  they  come  in  collision,  and  whether  it  be  a  law  in  existence 
when  the  "supreme  law"  was  adopted  or  enacted  afterwards.  The 
same  is  true  of  any  provision  in  the  constitution  of  any  State  which 
is  found  to  be  repugnant  to  the  Constitution  of  the  Union.  And  not 
only  must  "the  judges  in  every  State"  be  bound  by  such  supl^eme 
law,  but  so  must  the  State  itself,  and  every  official  in  all  its  depart- 
ments, and  every  citizen. 


SENATE   JUDICIARY    COMMITTEE   REPORT  357 

And  in  the  notes,  pages  33-35,  we  read: 

The  United  States  is  a  government  with  authority  extending  over 
the  whole  territory  of  the  Union,  acting  upon  the  States  and  the 
people  of  the  States.  While  it  is  limited  in  the  number  of  its  pow- 
ers, so  far  as  its  sovereignty  extends  it  is  supreme.  No  state  gov- 
ernment can  exclude  it  from  the  exercise  of  any  authority  conferred 
upon  it  by  the  Constitution,  obstruct  its  authorized  officers  against  its 
will,  or  withhold  from  it  for  a  moment  the  cognizance  of  any  sub- 
ject which  that  instrument  has  committed  to  it.  (Tennessee  v.  Davis, 
100  U.  S.  257,  per  Strong,  J.;  see  also  In  re  Debs,  petitioner,  158 
U.  S.  564;  Logan  v.  United  States,  144  U.  S.  263;  *  *  *  Dodoe 
V.  Wolsey,  18  How.  331;  Jefferson  Branch  Bank  v.  Skelly,  1  Black. 
436;  Cummings  v.  Missouri,  4  Wall.  277;  Eailroad  Co.  v.  McClure,  10 
Wall.  511;  White  v.  Hart,  13  Wall.  646;  Gunn  v.  Barry,  15  Wall. 
610;  Pacific  Railroad  Co.  v.  Maguire,  20  Wall.  36;  St.  Louis,  &c., 
Ry.  Co.  V,  Vickers,  122  U.  S.  360.)  A  state  can  not  control  the  con- 
duct of  an  agency  of  the  Federal  Government  within  its  limits,  if  the 
result  would  be  a  conflict  with  national  law  or  an  impairment  of  the 
efficiency  of  the  agency.  (Davis  v.  Elmira  Savings  Bank,  161  U.  S. 
275;  McClellan  v.  Chipman,  164  U.  S.  347.  Compare  Eeagan  v.  Mer- 
cantile Trust  Co.,  154  U.  S.  413.) 

Whenever  the  terms  in  which  a  power  is  granted  to  Congress,  or  the 
nature  of  the  power,  require  that  it  should  be  exercised  exclusively  by 
Congress,  the  subject  is  as  completely  taken  from  the  state  legislature 
as  if  they  had  been  expressly  forbidden  to  act.  (Marshall,  C.  J.,  in 
Sturges  V.  Crowninshield,  4  Wheat.  122.) 

In  Robb  V.  ConnoUy  (111  U.  S.  637),  Mr.  Justice  Harlan 
said: 

Upon  the  state  courts,  equally  with  the  courts  of  the  Union,  rests 
the  obligation  to  guard,  enforce,  and  protect  every  right  granted  or 
secured  by  the  Constitution  of  the  United  States  and  the  laws  made 
in  pursuance  thereof.  Wherever  those  rights  are  involved  in  any  suit 
or  proceeding  before  them;  for  the  judges  of  the  state  courts  are 
required  to  take  an  oath  to  support  that  Constitution,  and  they  are 
bound  by  it,  and  the  laws  of  the  United  States  made  in  pursuance 
thereof,  and  aU  treaties  made  under  their  authority,  as  the  supreme 
law  of  the  land,  "anything  in  the  constitution  or  laws  of  any  State 
to  the  contrary  notwithstanding. ' '  If  they  fail  therein,  and  with- 
hold or  deny  rights  or  immunities  secured  by  the  Constitution  and 
laws  of  the  United  States,  the  party  aggrieved  may  bring  the  case 
from  the  highest  court  of  the  State  in  which  the  question  could  be 
decided  to  this  court  for  final  and  conclusive  determination. 


358  APPENDIX 

In  re  Matthews  (122  Fed.  Rep.  248,  p.  251)  : 

The  second  clause  of  article  6  of  the  Federal  Constitution  is  in 
these  words: 

' '  This  Constitution  and  the  laws  of  the  United  States,  which  shaU 
be  made  in  pursuance  thereof,  and  aU  treaties  made  or  which  shall 
be  made  under  the  authority  of  the  United  States,  shall  be  the  su- 
preme law  of  the  land;  and  the  judges  in  every  State  shall  be  bound 
thereby,  anything  in  the  constitution  or  laws  of  any  State  to  the  con- 
trary notwithstanding. ' ' 

A  recent  writer  in  the  American  Law  Review  has  had  this 
to  say  concerning  this  clause,  to-wit: 

"This  provision  presupposes  that  the  judges  in  every  State  will 
have  some  knowledge  of  the  Constitution,  the  laws,  and  the  treaties 
of  the  Federal  Government  by  which  they  are  thus  to  be  bound;  and 
this  community  of  interest  and  obligation  obviously  makes  the  judi- 
cial officers  of  the  several  States,  in  a  certain  high  sense,  members  of 
the  federal  judiciary. ' ' 

In  the  case  of  Robb  v.  Connolly  (111  U.  S.  637,  4  Sup. 
Ct.  551,  28  L.  Ed.  542),  Mr.  Justice  Harlan  said: 

"A  state  court  of  original  jurisdiction,  having  the  parties  before 
it,  may,  consistently  with  existing  federal  legislation,  determine  cases 
at  law  or  in  equity  arising  under  the  Constitution  and  laws  of  the 
United  States,  or  involving  rights  dependent  upon  such  Constitution  or 
laws. ' ' 

And  again: 

' '  Upon  the  state  courts,  equally  with  the  courts  of  the  Union,  rests 
the  obligation  to  guard,  enforce,  and  protect  every  right  granted  or 
secured  by  the  Constitution  of  the  United  States,  and  the  laws  made 
in  pursuance  thereof,  whenever  these  rights  are  involved  in  any  suit 
or  proceeding  before  them." 

In  the  case  of  Ex  parte  Royall,  supra,  Mr.  Justice  Harlan 
said: 

In  Taylor  v.  Carryl  (20  How.  595,  15  L.  Ed.  1028)  it  was  said 
to  be  a  recognised  portion  of  the  duty  of  this  court  (and,  we  wiU  add, 
of  all  other  courts,  national  and  state)  "to  give  preference  to  such 
principles  and  methods  or  procedure  as  shall  seem  to  conciliate  the 


SENATE   JUDICIARY    COMMITTEE   REPORT  359 

distinct  and  independent  tribunals  of  the  States  and  of  the  Union,  so 
that  they  may  co-opei-ate  as  harmonious  members  of  a  judicial  system, 
coextensive  with  the  United  States,  and  submitting  to  the  paramount 
authority  of  the  same  Constitution,  laws,  and  federal  obligations. ' ' 
And  in  Covell  v.  Heyman  (111  U,  S.  182,  4  Sup.  Ct.  358,  28  L.  Ed. 
390)  it  was  declared  "that  the  forbearance  which  courts  of  co-ordi- 
nate jurisdiction,  administered  under  a  single  system,  exercise  toward 
each  other,  whereby  conflicts  are  avoided  by  avoiding  interference  with 
the  process  of  the  other,  is  a  principle  of  comity,  with  perhaps  no 
higher  sanction  than  the  ability  of  which  comes  from  concord;  but 
between  state  courts  and  those  of  the  United  States  it  is  something 
more.  It  is  a  principle  of  right  and  of  law,  and  therefore  of  neces- 
sity. ' ' 

Pc»neroy,  ' '  Introduction  to  the  Constitutional  Law  of  the 
United  States, ' '  third  edition,  503,  Section  743 : 

Strip  the  National  Government  of  an  authority  to  apply  a  sanction 
commensurate  with  its  power  to  legislate,  and  just  so  far  we  subtract 
from  that  legislation  the  necessary  element  of  a  command.  Strip  the 
Government  of  the  ability  to  make  that  sanction  supreme,  and  we 
equally  invalidate  the  authority  of  the  legislative  utterance.  This 
attribute  of  supremacy  would  be  destroyed  by  permitting  the  state 
courts,  for  example,  to  decide  upon  the  effect  of  national  laws,  and 
by  making  their  decisions  in  the  particular  State  where  made  of  an 
equal  authority  with  those  pronounced  upon  the  same  subject  by  the 
national  judges.  This  difficulty  thus  to  be  apprehended  from  the 
action  of  state  tribunals  could  only  be  prevented  in  one  of  two  ways 
— either  by  removing  from  them  the  power  to  decide  at  all  upon  rights 
and  duties  which  spring  from  the  national  legislation  and  conferring 
the  function  exclusively  upon  the  United  States  courts,  or  by  per- 
mitting the  state  judiciary  to  exercise  a  jurisdiction  in  such  cases, 
but  making  that  jurisdiction  subordinate  to  the  authority  of  the  na- 
tional courts  and  rendering  the  local  decisions  reviewable  by  the 
United  States  judges,  who  could  in  this  manner  enforce  their  at- 
tribute of  supremacy  in  relation  to  the  matters  under  consideration. 

In  theory  the  former  of  these  plans  would  have  been  the  more  sim- 
ple and  perfect.  But  it  was  perhaps  best,  from  some  motives  of 
expediency,  that  the  Constitution  should  not  expressly  determine  be- 
tween these  two  methods,  but  should  clothe  Congress  with  the  power 
of  making  such  a  choice  of  the  alternatives  as  should  be  found  to 
promote  the  convenience  of  the  people.  Congress  possesses  such  an 
authority;  it  might  make  aU  this  jurisdiction  exclusive  in  the  national 
courts,  but  has  done  so  only  in  particular  cases;  it  might  suffer  the 
state  tribunals  to  exercise  a  complete  concurrent-  power,  subject  to 


360  APPENDIX 

an  equally  complete  liability  to  review,  but  has  done  so  only  to  a 
limited  extent.  WTiether  Congress  shall  adopt  one  or  the  other  alter- 
native is  a  mere  question  of  policy;  it  may  do  either.     *     *     * 

The  Supreme  Court  of  the  United  States,  in  Teal  v.  Ful- 
ton (53  U.  S.  292),  referring  to  this  subject,  said: 

We  will  add  that  the  legislation  of  Congress  immediately  after  the 
Constitution  was  carried  into  operation  confirms  the  conclusion  of  the 
learned  judge.  We  find  in  the  twenty-fifth  section  of  the  judiciary 
act  of  1789,  under  which  this  case  is  before  us,  that  such  a  concur- 
rent jurisdiction  in  the  courts  of  the  States  and  the  United  States 
was  contemplated,  for  its  first  provision  is  for  a  review  of  cases 
adjudicated  in  the  forum,  "where  is  drawn  in  question  the  validity 
of  a  treaty  or  a  statute  of,  or  an  authority  exercised  by,  the  United 
States,  and  the  decision  is  against  their  validity. ' ' 

The  Supreme  Court  of  the  United  States  decided  in  this 
ease  of  Teal  v.  Fulton,  that  a  state  court  had  jurisdiction  to 
try  an  action  brought  against  a  postmaster  who  refused  to 
deliver  a  newspaper  on  which  there  was  "an  initial"  unless 
the  addressee  would  pay  letter  postage,  the  action  being 
founded  on  the  thirteenth  and  thirtieth  sections  of  the  act  of 
Congress  passed  in  1825  forbidding  a  writing  or  memoran- 
dum on  a  newspaper  or  other  printed  matter,  pamphlet,  or 
magazine  transmitted  by  mail.  The  court  said,  Mr.  Justice 
Wayne  delivering  the  opinion : 

But  it  is  said  that  the  courts  of  New  York  had  not  jurisdiction  to 
try  the  case.  The  objection  may  be  better  answered  by  reference  to 
the  laws  of  the  United  States  in  respect  to  the  services  to  be  rendered 
in  the  transmission  of  letters  and  newspapers  by  mail  and  by  the 
Constitution  of  the  United  States  than  it  can  by  any  general  rea- 
soning upon  the  concurrent  civil  jurisdiction  of  the  courts  of  the 
United  States  and  the  courts  of  the  States,  or  concerning  the  exclusive 
jurisdiction  given  by  the  Constitution  to  the  former. 

The  United  States  imdertakes  at  fixed  rates  of  postage,  to  convey 
letters  and  newspapers  for  those  to  whom  they  are  directed,  and  the 
postage  may  be  prepaid  by  the  sender  or  be  paid  when  either  reach 
their  destination  by  the  person  to  whom  they  are  addressed.  When 
tendered  by  the  latter  or  by  his  agent  he  has  the  right  to  the  immedi- 
ate possession  of  them,  though  he  has  not  had  before  the  actual  jjos- 
session.     If  they  be  wrongfully  withheld  for  the  charge  of  unlawful 


SENATE   JUDICIARY    COMMITTEE   REPORT  361 

postage,  it  is  a  conversion  for  which  suit  may  be  brought.  His  right 
to  sue  existing,  he  may  sue  in  any  court  having  civil  jurisdiction  of 
such  a  case,  unless  for  some  cause  the  suit  brought  is  an  exception  to 
the  general  jurisdiction  of  the  court. 

Now,  the  courts  of  New  York  having  jurisdiction  in  trover,  the  case 
in  hand  can  only  be  excepted  from  it  by  such  a  case  as  this  having 
been  made  one  of  exclusive  jurisdiction  in  the  courts  of  the  United 
States  by  the  Constitution  of  the  United  States.  That  such  is  not  the 
case,  we  can  not  express  our  view  better  than  Mr.  Justice  Wright  has 
done  in  his  opinion  in  this  case  in  the  court  of  appeals.  After  citing 
the  second  section  of  the  third  article  of  the  Constitution,  he  adds, 
' '  This  is  a  mere  grant  of  jurisdiction  to  the  federal  courts,  and  limits 
the  extent  of  their  power,  but  without  words  of  exclusion  or  any 
attempt  to  oust  the  state  courts  of  concurrent  jurisdiction  in  any  of 
the  specified  cases  in  which  concurrent  jurisdiction  existed  prior  to  the 
adoption  of  the  Constitution.  The  apparent  object  was  not  to  curtail 
the  powers  of  the  state  courts,  but  to  define  the  limits  of  those  granted 
to  the  federal  judiciary. ' ' 

We  will  add  that  the  legisltion  of  Congress,  immediately  after  the 
Constitution  was  carried  into  operation,  confirms  the  conclusion  of  the 
learned  judge.  We  find  in  the  twenty-fifth  section  of  the  judiciary  act 
of  1789,  under  which  this  case  is  before  us,  that  such  a  concurrent  jur- 
isdiction in  the  courts  of  the  States  and  of  the  United  States  was 
contemplated,  for  its  first  provision  is  for  a  review  of  cases  adjudi- 
cated in  the  former,  ' '  Where  is  drawn  in  question  the  validity  of  a 
treaty  or  statute  of,  or  an  authority  exercised  under  the  United  States, 
and  the  decision  is  against  their  validity. ' '  We  are  satified  that  there 
was  no  error  in  the  decision  of  the  court  of  appeals  in  this  case,  and 
the  same  is  afBLrmed  by  this  court. 

In  the  case  of  The  Moses  Taylor  (1866,  4  Wall.,  U.  S., 
428)  the  court  said: 

*  *  *  The  judiciary  act  of  1789,  in  its  distribution  of  jurisdic- 
tion to  the  several  federal  courts,  recognizes  and  is  framed  upon  the 
theory  that  in  all  cases  to  which  the  judicial  power  of  the  United 
States  extends  Congress  may  rightfully  vest  exclusive  jurisdiction  in 
the  federal  courts.  It  declares  that  in  some  cases,  from  their  com- 
mencement, such  jurisdiction  shall  be  exclusive;  in  other  eases  it  de- 
termines at  what  stage  of  procedure  such  jurisdiction  shall  attach, 
and  how  long  and  how  far  concurrent  jurisdiction  of  the  state  courts 
shall  be  permitted.  Thus,  cases  in  which  the  United  States  are 
parties,  civil  causes  of  admiralty  and  maritime  jurisdiction,  and  cases 
against    consuls    and    vice-consuls,    except   for    certain    offenses,    are 


362  APPENDIX 

placed,  from  their  commencement,  exclusively  under  the  cognizance 
of  the  federal  courts. 

On  the  other  hand,  some  cases,  in  which  an  alien  or  a  citizen  of 
another  State  is  made  a  party,  may  be  brought  either  in  a  federal  or 
a  state  court,  at  the  option  of  the  plaintiff;  and  if  brought  in  the 
state  court  may  be  prosecuted  untU  the  appearance  of  the  defendant, 
and  then,  at  his  option,  may  be  suffered  to  remain  there,  or  may  be 
transferred  to  the  jurisdiction  of  the  federal  courts.  Other  cases, 
not  included  under  these  heads,  but  involving  questions  under  the 
Constitution,  laws,  treaties,  or  authority  of  the  United  States,  are 
only  drawn  within  the  control  of  the  federal  courts  upon  appeal  or 
writ  of  error,  after  final  judgment.  By  subsequent  legislation  of 
Congress,  and  particularly  by  the  legislation  of  the  last  four  years, 
many  of  the  cases,  which  by  the  judiciary  act  could  only  come 
under  the  cognizance  of  the  federal  courts  after  final  judgment  in 
the  state  courts,  may  be  withdrawn  from  the  concurrent  jurisdiction 
of  the  latter  courts  at  earlier  stages,  upon  the  application  of  the 
defendant.  The  constitutionality  of  these  provisions  can  not  be  se- 
riously questioned,  and  is  of  frequent  recognition  by  both  state  and 
federal  courts. 

It  is  difficult  to  understand  why  the  Connecticut  court 
cites  the  case  of  Clailin  v.  Houseman  (93  U.  S.  130)  as 
authority  for  the  remarkable  position  taken,  for  a  careful 
consideration  of  the  opinion  of  IMr.  Justice  Bradley  in  that 
case  shows  conclusively  that  the  opinion  affords  no  basis  for 
the  contention  made  by  the  court  that  the  state  court  is  not 
authorized  and  required  to  enforce  Federal  statutes.  In 
his  opinion,  Mr.  Justice  Bradley  said : 

The  general  question,  whether  state  courts  can  exercise  concurrent 
jurisdiction  with  the  federal  courts  in  cases  arising  under  the  Con- 
stitution, laws,  and  treaties  of  the  United  States  has  been  elaborately 
discussed,  both  on  the  bench  and  in  published  treatises;  sometimes 
with  a  leaning  in  one  direction  and  sometimes  in  the  other;  but  the 
result  of  these  discussions  has,  in  our  judgment,  been,  as  seen  in  the 
above  cases,  to  affirm  the  jurisdiction  where  it  is  not  excluded  by  ex- 
press provision  or  by  incompatibility  in  its  exercise  arising  from  the 
nature  of  the  particular  case. 

When  we  consider  the  structure  and  true  relations  of  the  federal 
and  state  governments,  there  is  really  no  just  foimdation  for  excluding 
the  state  courts  from  all  such  jurisdiction. 

The  laws  of  the  United  States  are  laws  of  the  several  States,  and 


SENATE  JUDICIARY   COMMITTEE   ElEPORT  363 

just  as  much  bindiug  on  the  eitLzens  and  courts  thereof  as  state 
laws  are. 

The  United  States  is  not  a  foreign  sovereignty  as  regards  the  sev- 
erel  States,  but  is  a  concurrent  and,  within  its  jurisdiction,  paramount 
sovereignty.  Every  citizen  of  a  State  is  a  subject  of  two  distinct 
sovereignties,  ha\'ing  concurrent  jurisdiction  in  the  State:  concurrent 
as  to  place  and  persons,  though  distinct  as  to  subject-matter.  Legal 
or  equitable  rights,  acquired  under  either  system  of  laws,  may  be 
enforced  in  any  court  of  either  sovereignty  competent  to  hear  and 
detennine  such  kind  of  rights  and  not  restrained  by  its  constitution 
in  the  exercise  of  such  jurisdiction.  Thus  a  legal  or  equitable  right 
acquired  under  state  laws  may  be  prosecuted  in  the  state  courts  and 
also,  if  the  parties  reside  in  different  States,  in  the  federal  courts. 

So  rights,  whether  legal  or  equitable,  acquired  under  the  laws  of 
the  United  States  may  be  prosecuted  in  the  United  States  courts  or 
in  the  state  courts  competent  to  decide  rights  of  the  like  character 
and  class,  subject,  however,  to  this  qualification,  that  where  a  right 
arises  under  a  law  of  the  United  States,  Congress  may,  if  it  see  fit, 
give  to  the  federal  courts  exclusive  jurisdiction. 

See  remarks  of  Mr.  Justice  Field  in  The  Moses  Taylor  (4  Wall. 
429,  71  U.  S.,  XVIII,  401),  and  Story,  J.,  in  Martin  v.  Hunter  (1 
Wheat.  334),  and  Mr.  Justice  Swayne  in  Ex  parte  McNeil  (13  Wall. 
236,  80  U.  S.,  XX,  624). 

This  jurisdiction  is  sometimes  exclusive  by  express  enactment  and 
sometimes  by  implication. 

If  an  act  of  Congress  gives  a  penalty  to  a  party  aggrieved,  without 
specifying  a  remedy  for  its  enforcement,  there  is  no  reason  why  it 
should  not  be  enforced,  if  not  provided  otherwise  by  some  act  of 
Congress,  by  a  proper  action  in  a  state  court. 

The  fact  that  a  state  court  derives  its  existence  and  functions  from 
the  state  laws  is  no  reason  why  it  shoiUd  not  afford  relief,  because  it 
is  subject  also  to  the  laws  of  the  United  States,  and  is  just  as  much 
bound  to  recognize  these  as  operative  within  the  State  as  it  is  to 
recognize  the  state  laws.  The  two  together  form  one  system  of  jur- 
isprudence which  constitutes  the  law  of  the  land  for  the  State;  and 
the  courts  of  the  two  jurisdictions  are  not  foreign  to  each  other,  nor 
to  be  treated  by  each  other  as  such,  but  as  courts  of  the  same  country, 
having  jurisdiction  partly  different  and  partly  concurrent. 

The  disposition  to  regard  the  laws  of  the  United  States  as  emanat- 
ing from  a  foreign  jurisdiction  is  founded  on  erroneous  views  of  the 
nature  and  relations  of  the  state  and  federal  governments. 

It  is  often  the  cause  or  the  consequence  of  an  unjustifiable  jealousy 
of  the  United  States  Government  which  has  been  the  occasion  of  dis- 
astrovis  evils  to  the  country. 

It  is  true  the  sovereignties  are  distinct,  and  neither  can  interfere 


364  APPENDIX 

mth  the  proper  jurisdiction  of  the  other,  as  was  so  clearly  shown  by 
Chief  Justice  Taney  in  the  case  of  Ableman  v.  Booth  (21  How.  506, 
62  U.  S.,  XVI,  169),  and  hence  state  courts  have  no  power  to  revise 
the  action  of  the  federal  courts,  nor  the  federal  the  state,  except  where 
the  Federal  Constitution  or  laws  are  involved.  But  this  is  no  rea- 
son why  state  courts  should  not  be  open  for  the  prosecution  of  rights 
growing  out  of  the  laws  of  the  United  States,  to  which  their  jurisdic- 
tion is  competent  and  not  denied.     *     *     * 

In  Ex  parte  Siebold  (100  U.  S.)  the  court  said: 

The  power  of  Congi-ess,  as  we  have  seen,  is  paramount,  and  may  be 
exercised  at  any  time  and  to  any  extent  which  it  deems  expedient; 
and  so  far  as  it  is  exercised  and  no  further  the  regulations  affected 
supersede  those  of  the  State  which  are  inconsistent  therewith. 

As  a  general  nde,  it  is  no  doubt  expedient  and  wise  that  the  opera- 
tions of  the  state  and  national  governments  should,  as  far  as  prac- 
ticable, be  conducted  separately,  in  order  to  avoid  undue  jealousies 
and  jars  and  conflicts  of  jurisdiction  and  power.  But  there  is  no 
reason  for  laying  this  down  as  a  rule  of  universal  application.  It 
should  never  be  made  to  override  the  plain  and  manifest  dictates  of 
the  Constitution  itself. 

We  can  not  yield  to  such  a  transcendental  view  of  state  sovereignty. 
The  Constitution  and  laws  of  the  United  States  are  the  supreme  law 
of  the  land,  and  to  these  every  citizen  of  every  State  owes  obedience, 
whether  in  his  individual  or  ofiicial  capacity. 

There  are  very  few  subjects,  it  is  true,  in  which  our  system  of 
government,  complicated  as  it  is,  requires  or  gives  room  for  conjoint 
action  between  the  state  and  national  sovereignties.  Generally,  the 
powers  given  by  the  Constitution  to  the  Government  of  the  United 
States  are  given  over  distinct  branches  of  sovereignty  from  which  the 
state  governments,  either  expressly  or  by  necessary  implication,  are 
excluded. 

But  in  this  case  expressly,  and  in  some  others  by  implication,  as  we 
have  seen  in  the  case  of  pilotage,  a  concurrent  jurisdiction  is  contem- 
plated, that  of  the  State,  however,  being  subordinate  to  that  of  the 
United  States,  whereby  all  question  of  precedency  is  eliminated. 

The  position  assumed  by  the  court  on  this  question  is  with- 
out precedent  and  is  entirely  untenable  in  the  light  of  the 
judicial  history  of  the  United  States.  If  a  Federal  right  can 
not  be  the  basis  of  a  plaintiff's  claim  in  a  state  court;  if 
those  courts  derive  their  power  and  authority  and  compensa- 
tion  from  the   States  for  the  purpose   of  deciding  only 


SENATE   JUDICIARY    COMMITTEE   REPORT  365 

controversies  arising  under  the  law  of  the  State,  written 
and  unwritten,  then  a  defense  based  upon  a  Federal  right 
would  be  equall}^  unenforceable  in  said  courts.  If  they 
refuse  to  try  Federal  questions  for  a  plaintiff,  because  they 
are  without  jurisdiction,  how  can  they  consent  to  try  a 
Federal  question  when  asserted  as  a  ground  of  defense  by 
the  party  proceeded  against? 

In  a  comparatively  recent  case  the  Supreme  Court  of  the 
United  States,  in  the  case  of  the  Defiance  Water  Co.  v. 
Deiiance  (191  U.  S.  194),  Chief  Justice  Fuller,  in  deliver- 
ing the  opinion  of  the  court,  used  the  following  language : 

Moreover,  the  state  courts  are  perfectly  competent  to  decide  federal 
questions  arising  before  them  and  it  is  their  duty  to  do  so.  (Robb 
V.  C/*nnolly,  111  U.  S.  624,  637,  28  L.  Ed.  542,  546,  4  Sup.  Ct.  Rep. 
544;  Missouri  P.  R.  Co.  v.  Fitzgerald,  160  U.  S.  556,  583,  40  L.  Ed. 
336,  543,  16  Sup.  Ct.  Rep.  389.) 

A  ad  we  repeat,  the  presumption  is  in  all  cases  that  the  state  courts 
will  do  what  the  Constitution  and  laws  of  the  United  States  require. 
(Chicago  &  A.  R.  Co.  v.  Wiggins  Ferry  Co.,  108  U.  S.  18,  27  L.  Ed. 
636,  1  Sup.  Ct.  Rep.  614,  617;  Shreveport  v.  Cole,  129  U.  S.  36,  32 
L.  Ed.  589,  9  Sup.  Ct.  Rep.  210;  Neal  v.  Delaware,  103  U.  S.  370, 
389,  26  L.  Ed.  567,  571;  New  Orleans  v.  Benjamin,  153  U.  S.  411, 
424,  38  L.  Ed.  764,  769,  14  Sup.  Ct.  Rep.  905.) 

If  error  supervenes  the  remedy  is  found  in  paragraph  709  of  the 
Revised  Statutes.     (U.  S.  Comp.  Stat.,  1901,  p.  575.) 

In  Claflin  v.  Houseman,  ante,  the  court  said: 

The  United  States  is  not  a  foreign  sovereignty  as  regards  the  sev- 
eral States,  but  is  a  concurrent  and,  within  its  jurisdiction,  para- 
mount sovereignty.     *     *     * 

The  disposition  to  regard  the  laws  of  the  United  States  as  emanat- 
ing from  a  foreign  jurisdiction  is  founded  on  erroneous  views  of  the 
nature  and  relations  of  the  state  and  federal  governments. 

It  is  often  the  cause  or  the  consequence  of  an  unjustifiable  jealousy 
of  the  United  States  Government,  which  has  been  the  occasion  of  dis- 
astrous evils  to  the  country. 

Mr.  Justice  Shiras,  in  commenting  upon  the  concurrent 
jurisdictional  power  of  the  state  and  federal  courts,  in  the 


366  APPENDIX 

case  of  Murray  v.  Chicago  and  N.  W.  Ry.  Co.  (62  Fed.  Rep. 
24),  said: 

A  further  point  is  made  in  support  of  the  demurrer,  to  the  effect 
that  this  court  succeeds  only  to  the  jurisdiction  of  the  state  court  in 
which  the  action  was  originally  brought,  and  that  state  courts  have 
no  jurisdiction  over  cases  arising  out  of  interstate  commerce,  the 
argument  being  that,  as  the  State  can  not  legislate  touching  inter- 
state commerce,  the  state  courts  are  without  power  to  determine 
cases  of  the  like  character.  This  position  is  not  well  taken.  The 
limitations  upon  the  legislative  power  of  the  nation  and  of  the  sev- 
eral States  do  not  necessarily  apply  to  the  judicial  branches  of  the 
national  and  state  governments.  The  legislature  of  a  State  can  not 
abrogate  or  modify  any  of  the  provisions  of  the  Federal  Constitution 
nor  of  the  acts  of  Congress  touching  matters  within  congressional 
control,  but  the  courts  of  the  State,  in  the  absence  of  a  prohibitory 
provision  in  the  Federal  Constitution  or  acts  of  Congress,  have  fuU 
jurisdiction  over  cases  arising  under  the  Constitution  and  laws  of  the 
United  States. 

The  courts  of  the  States  are  constantly  called  upon  to  hear  and 
decide  cases  arising  under  the  Federal  Constitution  and  laws,  just 
as  the  courts  of  the  United  States  are  called  upon  to  hear  and  decide 
cases  arising  under  the  law  of  the  State  when  the  adverse  parties  are 
citizens  of  different  States.  The  duty  of  the  court  is  to  explain, 
apply,  and  enforce  the  existing  law  in  the  particular  cases  brought 
before  them.  If  the  law  applicable  to  a  given  case  is  of  federal 
origin,  the  legislature  of  the  State  can  not  abrogate  or  change  it, 
but  the  courts  of  the  State  may  apply  and  enforce  it;  and  hence  the 
fact  that  a  given  subject,  like  interstate  commerce,  is  beyond  legis- 
lative control  does  not,  ipso  facto,  prevent  the  courts  of  the  State 
from  exercising  jurisdiction  over  cases  which  grow  out  of  this  com- 
merce. Had  this  action  remained  in  the  state  court  in  which  it  was 
originally  brought,  the  court  would  have  had  jurisdiction  to  hear  and 
determine  the  issues  between  the  parties,  because  Congress  had  not 
enacted  that  jurisdiction  over  cases  of  this  character  is  confined  ex- 
clusively to  the  courts  of  the  United  States,  and  therefore  the  juris- 
diction of  the  state  court  was  full  and  complete. 

The  discussion  by  Judge  Baldwin  of  the  right  af  a  state 
court  to  refuse  to  enforce  such  a  statute  as  the  one  in  ques- 
tion and  his  reference  to  the  "public  policy"  of  a  State  as  a 
ground  for  such  a  refusal  to  take  jurisdiction  indicate 
clearly  that  he  had  in  mind  the  decisions  as  to  the  exercise 
of  "comity"  by  the  courts  of  one  State  in  taking  jurisdic- 


SENATE   JUDICIARY    COMMITTEE   REPORT  367 

tion  of  foreign  laws;  that  is,  the  laws  of  another  State. 
There  are  many  decisions  upon  the  right  of  a  party  to 
enforce  in  one  State  the  statutes  of  another. 

If  this  was  such  a  ease,  there  is  authority  for  the  position 
taken  in  the  Hoxie  case.  But  the  decision  in  these  cases  is 
justified  on  the  ground  that  statutes  of  other  States  (for- 
eign laws)  have  no  extraterritorial  force.  Such  decisions 
have  no  bearing  when  the  question  before  a  state  court  is 
the  enforcement  of  a  Federal  law.  This  is  not  a  mere 
question  of  comity;  it  is  a  question  of  authority. 

The  Federal  law  is  imperative,  mandatory,  and  para- 
mount over  every  foot  of  the  soil  of  every  State.  It  is  in  no 
sense  foreign  when  its  application  or  enforcement  is  sought 
in  the  courts  of  a  State.  No  policy  of  a  State  can  impair 
its  imperative  obligation.  No  official  of  a  State,  sworn  to 
support  the  Constitution  of  the  United  States  can  deny  the 
enforcement  of  a  statute  of  the  United  States,  made  in 
pursuance  of  the  United  States  Constitution.  Such  law 
by  the  Constitution  is  made  ' '  the  supreme  law  of  the  land, 
anything  in  the  Constitution  or  laws  of  any  State  to  the 
contrary  notwithstanding. ' ' 

How  can  a  judge  of  a  state  court  deny  the  imperative 
obligation  of  a  Federal  statute  on  any  occasion  in  his 
court?  Before  he  can  lawfully  assume  the  duties  as  such 
state  judge  he  is  bound  by  oath  in  obedience  to  the  express 
requirements  of  the  Constitution  (Art.  VI,  sec.  3)  to  sup- 
port the  Constitution  of  the  United  States,  which  in  express 
terms  makes  Federal  statutes  "the  supreme  law  of  the 
land, ' '  and  the  judges  in  every  State  shall  be  bound  thereby, 
"anything  in  the  Constitution  or  laws  of  any  State  to  the 
contrary  notwithstanding. ' ' 

Federal  laws  are  not  dependent  upon  the  judicial  courtesy 
of  state  courts,  to  be  enforceable  in  the  courts  of  some  States 
and  to  be  refused  enforcement  in  others.  They  are  "the 
supreme  law  of  the  land,  and  the  judges  in  every  State 
shall  be  bound  thereby, ' ' 


368  APPENDIX 

SURVIVAL   OP  ACTION 

In  considering  the  advisability  of  amending  the  act  enti- 
tled ' '  An  act  relating  to  the  liability  of  common  carriers  by 
railroads  to  their  employes  in  certain  cases,"  approved 
April  22,  1908,  it  is  important  at  the  outset  to  understand 
that  the  purpose  of  Congress  in  the  passage  of  this  act  was 
to  extend  further  protection  to  employes.  This  was  its 
manifest  purpose,  as  is  apparent  from  a  consideration  of  the 
circumstances  of  its  enactment.  It  is  manifest  from  a 
consideration  of  the  reports,  both  of  the  Senate  and  House 
committees,  when  the  measure  was  pending  before  those 
bodies  prior  to  its  enactment,  that  the  purpose  of  the  statute 
was  to  extend  and  enlarge  the  remedy  provided  by  law  to 
employes  engaged  in  interstate  commerce  in  cases  of  death 
or  injury  to  such  employes  while  engaged  in  such  service. 
No  purpose  or  intent  on  the  part  of  Congress  can  be  found 
to  limit  or  to  take  away  from  such  an  employe  any  right 
theretofore  existing  by  which  such  employes  were  entitled 
to  a  more  extended  remedy  than  that  conferred  upon  them 
by  the  act. 

The  effect  of  decisions  of  cases  so  far  adjudicated  under 
the  act  has  been  in  general  to  recognize  the  true  intent  of 
Congress  and  to  extend  and  make  more  ample  the  right  to 
recover  damages  for  death  or  injury  to  interstate  servants, 
yet  in  some  particulars  its  operation  has  been  to  limit  a 
recovery  which  otherwise  would  have  been  open  to  the 
employe  or  his  representative. 

One  result  of  the  passage  of  the  law  may  be  to  nullify 
state  laws  affording  a  remedy  in  certain  cases  for  death  or 
injury  in  railroad  service.  The  state  laws  which  had  been 
operative  and  which  were  valid  even  in  their  application  to 
those  engaged  in  service  in  interstate  commerce  appear  to 
have  been  rendered,  as  to  interstate  servants,  ineffective 
when  Congress  acted  upon  this  subject.  That  this  seems 
to  have  been  the  effect  of  the  passage  of  this  law  was  ex- 
pressly  decided   in   a  well-considered   opinion   by   Judge 


SENATE   JUDICIARY    COMMITTEE    REPORT  369 

Rogers  iu  the  case  of  Fulgam  v.  Midland  Valley  R.  Co. 
(167  Fed.  660,  p.  662)  : 

It  is  clear  that  the  act  of  April  22,  1908,  supra,  superseded  and  took 
the  place  of  all  state  statutes  regulating  i-elations  of  employers  and 
employes  engaged  in  interstate  commerce  by  railroads.  It  covered 
not  only  injuries  sustained  by  employes  engaged  in  that  commerce 
resulting  from  the  negligence  of  the  master  and  his  servants,  and 
from  defects  in  the  designated  instrumentalities  in  use  in  that  com- 
merce, but  also  dealt  with  contributory  and  comparative  negligence 
and  assumed  risk,  making,  in  certain  cases  at  least,  the  master  an 
insurer  of  the  safety  of  the  servant  while  in  his  employment  in  that 
commerce.  It  covers  and  overlaps  the  whole  state  legislation,  and  is 
therefore  exclusive. 

All  state  legislation  on  that  subject  must  give  way  before  that  act. 
(Miss.  Eailroad  Commission  v.  111.  Cent.  E.  E.  Co.,  203  U.  S.  335, 
27  Sup.  Ct.  90,  51  L.  Ed.  209;  Sherlock  et  al.  v.  Ailing,  adminis- 
trator, 93  U.  S.  104,  23  L.  Ed.  819.)  These  last  cases  serve  to  show 
that,  until  Congress  has  acted  wtih  reference  to  the  regulation  of  hi- 
terstate  commerce,  state  statutes  regulating  the  relations  of  master 
and  servant  and  incidentally  affecting  interstate  commerce,  but  not 
regulating  or  obstructing  it,  may  be  given  effect;  but  when  Con- 
gress has  acted  upon  a  given  subject  state  legislation  must  yield. 

In  Gulf,  Colorado,  etc.,  Eailroad  Co.  v.  Hefley  (158  U,  S.  99,  19 
Sup,  Ct.  804,  39  L.  Ed.  910)  the  court  said:  "When  a  state  statute 
and  a  federal  statute  operate  upon  the  same  subject-matter,  and  pre- 
scribe different  rules  concerning  it,  the  state  statute  must  give  way. ' ' 

When  Congress  acted  upon  the  subject  of  the  regulation 
of  the  liability  of  interstate  carriers  for  injuries  to  their 
servants  engaged  in  interstate  commerce,  "the  State  was 
thereby  precluded  from  enacting  any  law  of  that  sort  which 
would  have  that  effect,  for  the  field  of  policy  and  legislation 
was  thus  assumed  by  Congress  and  withdrawn  from  state 
competency."  (Wisconsin  v.  C,  M.  &  St.  P.  Ry.  Co.,  117 
N.  W.  686.) 

In  the  course  of  his  opinion  in  the  case  above  cited, 
Justice  Dodge,  delivering  the  unanimous  opinion  of  the 
supreme  court  of  Wisconsin,  very  clearly  stated  this  doctrine 
and  the  authority  upon  which  it  was  based,  as  follows : 

Within  the  field  of  authorized  congressional  action  the  federal 
power  must,  in  the  nature  of  things,  be  supreme  in  all  parts  of  the 

Roberts  Liabilities — 24 


370  APPENDIX 

United  States.  ' '  This  Constitution,  and  the  laws  of  the  United  States 
which  shall  be  made  in  pursuance  thereof  *  *  *  shall  be  the  su- 
preme law  of  the  land ;  and  the  judges  in  every  State  shall  be  bound 
thereby,  anything  in  the  constitution  or  laws  of  any  State  to  the  con- 
trary notwithstanding."  (Art.  VI,  par.  2,  Const.  U.  S.)  In  Cooley 
V.  Board  of  Wardens  (12  How.  299,  318),  it  was  said  of  this  class 
of  legislation:  "It  is  not  the  mere  existence  of  such  power,  but  its 
exercise  by  Congress,  which  may  be  incompatible  with  the  exercise 
of  the  same  power  by  the  State,  and  that  the  States  may  legislate  in 
the  absence  of  congressional  legislation. ' '  In  Pennsylvania  v.  Wheel- 
ing, etc.,  Co.  (18  How.  431),  where  a  state  law  authorized  the  build- 
ing of  a  bridge  over  a  navigable  water,  it  was  declared  that  even  in 
the  matter  of  a  bridge  ' '  if  Congress  chooses  to  act,  its  action  neces- 
sarily precludes  the  action  of  the  State." 

In  United  States  v.  Colorado  &  N.  W.  R.  (157  Fed.  Rep. 
321,  330),  Sanborn,  J.,  remarks: 

"The  Constitution  reserved  to  the  nation  the  unlimited  power  to 
regulate  interstate  and  foreign  commerce,  and  if  that  power  can  hot 
be  effectually  exercised  without  affecting  intrastate  commerce,  then 
Congress  may  undoubtedly  in  that  sense  regulate  intrastate  commerce, 
so  far  as  necessary,  in  order  to  regulate  interstate  commerce  fully  and 
effectually.  *  *  *  That  power  is  not  subordinate  but  is  para- 
mount to  all  the  powers  of  the  States.  If  its  independent  and  lawful 
exercise  of  this  congressional  power  and  the  attempted  exercise  by  a 
State  of  any  of  its  powers  impinge  or  conflict,  the  former  must  pre- 
vail and  the  latter  must  give  way."  (See  also  Gibbons  v.  Ogden,  9 
Wheat.  1,  209,  210.) 

It  will  be  observed  from  these  utterances  that  it  is  not  a  mere 
question  of  conflicting  laws  in  the  two  jurisdictions,  so  that  the  law  of 
a  State  wUl  be  valid  so  far  as  not  antagonistic  to  a  federal  law. 
The  question  is  more  properly  one  of  jurisdiction  over  the  subject, 
the  holding  being  that  within  the  second  class  of  subjects  above  out- 
lined silence  of  Congress  is  deemed  a  relegation  to  the  States  of  such 
jurisdiction  and  authority,  but  action  by  Congress  upon  the  particu- 
lar subject  is  deemed  an  assertion  of  the  federal  power,  a  declaration 
of  the  policy  that  the  subject  shall  be  under  federal  and  not  state 
regulation,  and  that,  therefore,  the  power  shall  no  longer  rest  in  the 
State  to  exercise  that  authority  which  by  the  Constitution  of  the 
United  States  was  surrendered  to  the  Federal  Government  when  and 
if  Congress  deemed  its  exercise  advisable. 

In  a  recent  decision  of  the  court  of  civil  appeals,  State  of 
Texas,  the  court  unanimously  stated  this  doctrine  as  follows : 


SENATE   JUDICIARY    COMMITTEE   REPORT  371 

It  is  well  settled  that  the  power  of  Congress  to  regulate  interstate 
commerce  under  the  provisions  of  the  Constitution  before  mentioned 
is  plenary  and  includes  the  power  to  prescribe  the  qualifications, 
duties,  and  liabilities  of  employes  of  railway  companies  engaged  in 
interstate  commerce,  and  any  legislation  by  Congress  on  such  subject 
supersedes  any  state  law  upon  the  same  subject.  (Railway  Co.  v. 
Alabama,  128  U.  S.  99;  Howard  v.  Railway  Co.,  207  U.  S.  463.) 

The  constitutional  right  of  Congress  to  legislate  upon  this  subject 
having  been  exercised  by  that  body,  the  right  of  the  State  to  invade 
this  field  of  legislation  ceased,  or,  at  all  events,  no  act  of  a  state  legis- 
lature in  conflict  with  the  act  of  Congress  upon  the  same  subject  can 
be  held  valid.  The  supreme  courts  of  Missouri  and  Wisconsin,  in  pass- 
ing upon  the  validity  of  statutes  of  said  States  similar  to  the  act  we 
are  considering,  hold  such  statutes  void  upon  the  groimd  of  conflict 
with  the  act  of  Congress  before  mentioned.  (State  v.  Mo.  Pac.  Ry. 
Co.,  Ill  S.  W.  500;  State  v.  C.  M.  &  St.  P.  Ry.  Co.,  117  N.  W.  686.) 

Judge  Cooley,  in  his  work  on  Constitutional  Limitations, 
seventh  edition,  856,  said: 

It  is  not  doubted  that  Congress  has  the  power  to  go  beyond  the 
general  regulation  of  commerce  which  it  is  accustomed  to  establish, 
and  to  descend  to  the  most  minute  directions,  if  it  shall  be  deemed 
advisable;  and  that  to  whatever  extent  ground  shall  be  covered  by 
these  directions,  the  exercise  of  state  power  is  excluded. 

It  is  therefore  undoubtedly  the  law  that  congressional 
action  upon  the  liability  of  carriers  engaged  in  interstate 
commerce,  for  injuries  to  their  employes,  supersedes  all  state 
legislation  upon  the  same  subject,  and  renders  them,  as  long 
as  the  Federal  law  remains  in  operation,  of  no  avail  as 
providing  a  legal  remedy. 

Many  of  the  States  provide  by  statute  for  the  survival  of 
any  action  which  the  deceased  may  have  had  for  the  injury 
to  his  estate,  and  for  any  expenditures  during  his  lifetime 
resulting  from  the  injury. 

In  the  phraseology'  of  the  existing  Employers'  Liability 
Act — that  is,  the  Act  of  April  22,  1908 — the  expression  used 
is,  as  to  the  question  now  under  consideration : 

Shall  be  liable  in  damages  *  *  *  in  case  of  death  of  such 
employe,  to  his  or  her  personal  representative  for  the  benefit  of  the 


372  APPENDIX 

surviving  widow  or  husband  and  children  of  such  employe;  and  if 
none,  then  of  such  employe's  parents;  and  if  none,  then  of  the  next 
of  kin  dependent  upon  such  employe,  for  such  injury  or  death  result- 
ing in  whole  or  in  part  from  the  negligence  of  any  of  its  officers, 
agents,  employes,     *     *     *. " 

In  the  case  of  Fulgam  v.  Midland  Valley  R.  R.  Company, 
hereinbefore  cited,  the  court  said: 

In  the  opinion  of  the  court,  right  of  action  given  to  the  injured 
employe  by  the  act  of  April  22,  1908,  does  not  survive  to  his  personal 
representative  in  the  event  of  his  death,  but,  at  common  law,  perishes 
with  the  injured  person. 

In  the  case  of  Walsh,  admx.,  v.  New  York,  New  Haven 
and  Hartford  Railroad  Company,  Circuit  Judge  Lowell, 
who  delivered  the  opinion  of  the  court,  said  in  a  case  arising 
under  the  Employers '  Liability  Act  of  April  22,  1908,  after 
quoting  the  case  of  Fulgam  v.  Midland  Valley  R.  R.  Co. 
(167  Fed.  660)  : 

The  defendant  has  further  demurred  to  counts  one  and  four,  con- 
tending that  the  employe's  cause  of  action  to  recover  for  his  con- 
scious suffering  did  not  survive  to  his  administratrix,  although  the 
existence  of  some  of  the  statutory  relatives  was  alleged.  As  the 
cause  of  action  is  given  by  a  federal  statute,  this  court  can  not  have 
recourse  to  a  state  statute  in  order  to  determine  whether  the  cause 
of  action  survives  or  not.  (Schreiber  v.  Sharpless,  110  U.  S.  76,  80; 
B.  &  O.  E.  R.  V.  Joy,  173  U.  S.  226,  230;  U.  S.  v.  DeGoer,  38  Fed. 
80;  U.  S.  V.  Riley,  104  Fed.  275.)  Revised  Statutes,  section  955,  pro- 
vides that  "When  either  of  the  parties,  whether  plaintiff  or  peti- 
tioner, or  defendant,  in  any  suit  in  any  court  of  the  United  States, 
dies  before  final  judgment,  the  executor  or  administrator  of  such  de- 
ceased party  may,  in  case  the  cause  of  action  survives  by  law,  prose- 
cute or  defend  any  such  suit  to  final  judgment."  This  section  does 
not  itself  provide  what  causes  of  action  shall  survive,  but  in  the 
absence  of  other  controlling  statute  leaves  the  matter  to  the  com- 
mon law.  In  the  case  at  bar,  therefore,  the  state  statutes  are  inap- 
plicable. There  is  no  general  federal  statute,  and  the  particular 
statute  in  question,  the  act  of  1908,  says  nothing  about  survival. 

Thus  remitted  to  the  common  law,  at  which  survival  is  out  of  the 
question,  we  must  here  hold  that  the  cause  of  action  did  not  survive 
and  so  that  counts  one  and  four  are  demurrable.  (Fulgam  v.  Mid- 
land Valley  Co.,  167  Fed.  660.)     The  court  is  justified  in  saying  that 


SENATE   JUDICIAEY    COMMITTEE    REPORT  373 

this  result  has  been  reached  with  reluctance.  The  maxim  "Actio 
personalis  moritur  cum  persona"  has  not  always  commended  itself. 
(Pollock  on  Torts,  Webb's  ed.,  p.  71.)  The  survival  of  the  cause 
of  action  in  this  case  is  allowed  by  the  statutes  of  many  States.  Thsit 
one  who  has  suffered  in  body  and  in  purse  by  the  fault  of  another, 
and  so  has  a  cause  of  action  against  the  wrongdoer,  should,  as  to  his 
own  estate,  be  deprived  of  this  remedy  by  the  delays  of  the  law,  or 
without  such  delay,  by  his  death,  before  or  after  action  brought, 
whether  connected  or  unconnected  with  his  first  injury,  seems  to  me, 
as  to  Sir  Frederick  Pollock,  a  barbarous  rule.  The  intent  or  the  over- 
sight of  the  legislature  has  established  the  rule  in  this  case. 

The  language  of  the  statute  should  be  made  clear  so  that 
the  uncertainty  and  obscurity  suggested  by  Judge  Lowell 
would  be  removed.  So  important  a  statute  should  be  made 
so  certain  in  its  terms  that  the  intent  of  Congress  may  be 
made  manifest  and  clear. 

It  certainly  should  be  as  broad,  as  comprehensive,  and  as 
inclusive  in  its  terms  as  any  of  the  similar  remedial  statutes 
existing  in  any  of  the  States,  which  are  suspended  in  their 
operation  by  force  of  the  Federal  legislation  upon  the 
subject. 


APPENDIX  G 

FEDERAL  LOCOMOTIVE  ASH  PAN  ACT 
An  act  to  promote  the  safety  of  employes  on  railroads. 

Section  1.  On  and  after  the  first  day  of  January,  nine- 
teen hundred  and  ten,  it  shall  be  unlawful  for  any  common 
carrier  engaged  in  interstate  or  foreign  commerce  by  rail- 
road to  use  any  locomotive  in  moving  interstate  or  foreign 
traffic,  not  equipped  with  an  ash  pan,  which  can  be  dumped 
or  emptied  and  cleaned  without  the  necessity  of  any  employe 
going  under  such  locomotive. 

Sec.  2.  On  and  after  the  first  day  of  January,  nineteen 
hundred  and  ten,  it  shall  be  unlawful  for  any  common 
carrier  by  railroad  in  any  Territory  of  the  United  States 
or  of  the  District  of  Columbia  to  use  any  locomotive  not 
equipped  with  an  ash  pan,  which  can  be  dumped  or  emptied 
and  cleaned  without  the  necessity  of  any  employe  going 
under  such  locomotive. 

Sec.  3.  Any  such  common  carrier  using  any  locomotive 
in  violation  of  any  of  the  provisions  of  this  act  shall  be 
liable  to  a  penalty  of  two  hundred  dollars  for  each  and 
every  such  violation,  to  be  recovered  in  a  suit  or  suits  to  be 
brought  by  the  United  States  district  attorney  in  the  district 
court  of  the  United  States  having  jurisdiction  in  the  locality 
where  such  violation  shall  have  been  committed ;  and  it  shall 
be  the  duty  of  such  district  attorney  to  bring  such  suits 
upon  duly  verified  information  being  lodged  with  him  of 
such  violation  having  occurred ;  and  it  shall  also  be  the  duty 
of  the  Interstate  Commerce  Commission  to  lodge  with  the 
proper  district  attorneys  information  of  any  such  violations 
as  may  come  to  its  knowledge. 

374 


ASH  PAN   ACT  375 

Sec.  4.  It  stall  be  the  duty  of  the  Interstate  Commerce 
Commission  to  enforce  the  provisions  of  this  act,  and  all 
powers  heretofore  granted  to  said  Commission  are  hereby- 
extended  to  it  for  the  purpose  of  the  enforcement  of  this 
act. 

Sec.  5.  The  term  "common  carrier"  as  used  in  this  act 
shall  include  the  receiver  or  receivers  or  other  persons  or 
corporations  charged  with  the  duty  of  the  management  and 
operation  of  the  business  of  a  common  carrier. 

Sec.  6.  Nothing  in  this  act  contained  shall  apply  to  any 
locomotive  upon  which,  by  reason  of  the  use  of  oil,  electric- 
ity, or  other  such  agency,  an  ash  pan  is  not  necessary. 


APPENDIX  H 

FEDERAL  HOURS  OF  SERVICE  ACT 

An  act  to  promote  the  safety  of  employes  and  traveleus 
upon  railroads  by  limiting  the  hours  of  service  of  em- 
ployes thereon. 

Section  1.  The  provisions  of  this  act  shall  apply  to  any 
common  carrier  or  carriers,  their  officers,  agents,  and  em- 
ployes, engaged  in  the  transportation  of  passengers  or 
property  by  railroad  in  the  District  of  Columbia  or  any 
Ten'itory  of  the  United  States,  or  from  one  State  or  Terri- 
tory of  the  United  States  or  the  District  of  Columbia  to  any 
other  State  or  Territory  of  the  United  States  or  the  District 
of  Columbia,  or  from  any  place  in  the  United  States 
to  an  adjacent  foreign  country,  or  from  any  place  in  the 
United  States  through  a  foreign  country  to  any  other 
place  in  the  United  States.  The  term  ''railroad"  as  used 
in  this  act  shall  include  all  bridges  and  ferries  used  or 
operated  in  connection  with  any  railroad,  and  also  all  the 
road  in  use  by  any  common  carrier  operating  a  railroad, 
whether  owned  and  operated  under  a  contract,  agreement, 
or  lease;  and  the  term  ''employes"  as  used  in  this  act  shall 
be  held  to  mean  persons  actually  engaged  in  or  connected 
with  the  movement  of  any  train. 

Sec.  2.  It  shall  be  unlawful  for  any  common  carrier,  its 
officers  or  agents,  sub.ject  to  this  act  to  require  or  permit 
any  employe  subject  to  this  act  to  be  or  remain  on  duty  for 
a  longer  period  than  sixteen  consecutive  hours,  and  when- 
ever any  such  employe  of  such  common  carrier  shall  have 
been  continuously  on  duty  for  sixteen  hours  he  shall  be 
relieved  and  not  required  or  permitted  again  to  go  on  duty 

376 


HOURS   OF    SERVICE    ACT  877 

until  he  has  had  at  least  ten  consecutive  hours  off  duty ;  and 
no  such  employe  who  has  been  on  duty  sixteen  hours  in  the 
aggregate  in  any  twenty-four  hour  period  shall  be  required 
or  permitted  to  continue  or  again  go  on  duty  without  having 
had  at  least  eight  consecutive  hours  off  duty;  Provided, 
That  no  operator,  train  dispatcher,  or  other  employe  who  by 
the  use  of  the  telegraph  or  telephone  dispatches,  reports, 
transmits,  receives,  or  delivers  orders  pertaining  to  or  affect- 
ing train  movements  shall  be  required  or  permitted  to  be  or 
remain  on  duty  for  a  longer  period  than  nine  hours  in  any 
twenty-four-hour  period  in  all  towers,  offices,  places,  and 
stations  continuously  operated  night  and  day,  nor  for  a 
longer  period  than  thirteen  hours  in  all  towers,  offices, 
places,  and  stations  operated  only  during  the  daytime, 
except  in  case  of  emergency,  when  the  employes  named  in 
this  proviso  may  be  permitted  to  be  and  remain  on  duty  for 
four  additional  hours  in  a  twenty-four-hour  period  on  not 
exceeding  three  days  in  any  week:  Provided  further,  The 
Interstate  Commerce  Commission  may  after  full  hearing  in 
a  particular  case  and  for  good  cause  shown  extend  the 
period  within  which  a  common  carrier  shall  comply  with 
the  provisions  of  this  proviso  as  to  such  case. 

Sec,  3.  Any  such  common  carrier,  or  any  officer  or 
agent  thereof,  requiring  or  permitting  any  employe  to  go, 
be,  or  remain  on  duty  in  violation  of  the  second  section 
hereof,  shall  be  liable  to  a  penalty  of  not  to  exceed  five 
hundred  dollars  for  each  and  every  violation,  to  be  re- 
covered in  a  suit  or  suits  to  be  brought  by  the  United  States 
district  attorney  in  the  district  court  of  the  United  States 
having  jurisdiction  in  the  locality  where  such  violation  shall 
have  been  committed;  and  it  shall  be  the  duty  of  such  dis- 
trict attorney  to  bring  such  suits  upon  satisfactory  informa- 
tion being  lodged  with  him ;  but  no  such  suit  shall  be 
brought  after  the  expiration  of  one  year  from  the  date  of 
such  violation ;  and  it  shall  also  be  the  duty  of  the  Interstate 
Commerce  Commission  to  lodge  with  the  proper  district 
attorneys  information  of  any  such  violations  as  may  come 
to  its  knowledge.     In  all  prosecutions  under  this  act  the 


378  APPENDIX 

common  carrier  shall  be  deemed  to  have  had  knowledge  of 
all  acts  of  all  its  officers  and  agents:  Provided,  That  the 
provisions  of  this  act  shall  not  apply  in  any  case  of  casualty 
or  unavoidable  accident  or  the  act  of  God;  nor  where  the 
delay  was  the  result  of  a  cause  not  known  to  the  carrier  or 
its  officer  or  agent  in  charge  of  such  employe  at  the  time 
said  employe  left  a  terminal,  and  which  could  not  have  been 
foreseen :  Provided  further,  That  the  provisions  of  this  act 
shall  not  apply  to  the  crews  of  wrecking  or  relief  trains. 

Sec.  4.  It  shall  be  the  duty  of  the  Interstate  Commerce 
Commission  to  execute  and  enforce  the  provisions  of  this 
act,  and  all  powers  granted  to  the  Interstate  Commerce 
Commission  are  hereby  extended  to  it  in  the  execution  of 
this  act. 


APPENDIX  I 

FEDERAL  BOILER  INSPECTION  ACT  i 

An  act  to  promote  the  safety  of  employes  and  travelers 
upon  railroads  by  compelling  common  carriers  engaged 
in  interstate  commerce  to  equip  their  locomotives  with 
safe  and  suitable  boilers  and  appurtenances  thereto. 

Section  1.  The  provisions  of  this  act  shall  apply  to  any 
common  carrier  or  carriers,  their  officers,  agents,  and 
employes,  engaged  in  the  transportation  of  passengers  or 
property  by  railroad  in  the  District  of  Columbia,  or  in  any 
Territory  of  the  United  States,  or  from  one  State  or  Terri- 
tory of  the  United  States  or  the  District  of  Columbia  to  any 
other  State  or  Territory  of  the  United  States  or  the  District 
of  Columbia,  or  from  any  place  in  the  United  States  to  an 
adjacent  foreign  country,  or  from  any  place  in  the  United 
States  through  a  foreign  country  to  any  other  place  in  the 
United  States.  The  term  "railroad"  as  used  in  this  act 
shall  include  all  the  roads  in  use  by  any  common  carrier 
operating  a  railroad,  whether  owned  or  operated  under  a 
contract,  agreement,  or  lease,  and  the  term  "employes"  as 
used  in  this  act  shall  be  held  to  mean  persons  actually 
engaged  in  or  connected  with  the  movement  of  any  train. 

Sec.  2.  From  and  after  the  first  day  of  July,  nineteen 
hundred  and  eleven,  it  shall  be  unlawful  for  any  common 
carrier,  its  officers  or  agents,  subject  to  this  act  to  use  any 
locomotive  engine  propelled  by  steam  power  in  moving 
interstate  or  foreign  traffic  unless  the  boiler  of  said  loco- 
motive and  appurtenances  thereof  are  in  proper  condition 
and  safe  to  operate  in  the  service  to  which  the  same  is  put, 
that  the  same  may  be  employed  in  the  active  service  of  such 

1  This  Act  was  amended  by  an  Act  approved  March  4,  1915,  see 
p.  450,  post. 

379 


380  APPENDIX 

carrier  in  moving  traffic  without  unnecessary  peril  to  life 
or  limb,  and  all  boilers  shall  be  inspected  from  time  to  time 
in  accordance  with  the  provisions  of  this  act,  said  be  able 
to  withstand  such  test  or  tests  as  may  be  prescribed  in  the 
rules  and  regulations  hereinafter  provided  for. 

Sec.  3.  There  shall  be  appointed  by  the  President,  by 
and  with  the  advice  and  consent  of  the  Senate,  a  chief 
inspector  and  two  assistant  chief  inspectors  of  locomotive 
boilers,  who  shall  have  general  superintendence  of  the 
inspectors  hereinafter  provided  for,  direct  them  in  the 
duties  hereby  imposed  upon  them,  and  see  that  the  require- 
ments of  this  act  and  the  rules,  regulations,  and  instructions 
made  or  given  hereunder  are  observed  by  common  carriers 
subject  thereto.  The  said  chief  inspector  and  his  two 
assistants  shall  be  selected  with  reference  to  their  practical 
knowledge  of  the  construction  and  repairing  of  boilers,  and 
to  their  fitness  and  ability  to  systematize  and  carry  into 
effect  the  provisions  hereof  relating  to  the  inspection  and 
maintenance  of  locomotive  boilers.  Tlie  chief  inspector  shall 
receive  a  salary  of  four  thousand  dollars  per  year  and  the 
assistant  chief  inspectors  shall  each  receive  a  salary  of  three 
thousand  dollars  per  year;  and  each  of  the  three  shall  be 
paid  his  traveling  expenses  incurred  in  the  performance  of 
his  duties.  The  office  of  the  chief  inspector  shall  be  in 
Washington,  District  of  Columbia,  and  the  Interstate  Com- 
merce Commission  shall  provide  such  stenographic  and 
clerical  help  as  the  business  of  the  offices  of  the  chief 
inspector  and  his  said  assistants  may  require. 

Sec.  4.  Immediately  after  his  appointment  and  qualifi- 
cation the  chief  inspector  shall  divide  the  territory  compris- 
ing the  several  States,  the  Territories  of  New  Mexico  and 
Arizona,  and  the  District  of  Columbia  into  fifty  locomotive 
boiler-inspection  districts,  so  arranged  that  the  service  of 
the  inspector  appointed  for  each  district  shall  be  most 
effective,  and  so  that  the  work  required  of  each  inspector 
shaU  be  substantially  the  same.  Thereupon  there  shall  be 
appointed  hy  the  Interstate  Commerce  Commission  fifty 
inspectors  of  locomotive  boilers.     Said  inspectors  shall  be 


BOILER   INSPECTION   ACT  381 

in  the  classified  service  and  shall  be  appointed  after  com- 
P'^titive  examination  according  to  the  law  and  the  rules  of 
tl  e  Civil  Service  Commission  governing  the  classified 
sc  rvice.  The  chief  inspector  shall  assign  one  inspector  so 
a]  'pointed  to  each  of  the  districts  hereinafter  named.  Each 
inspector  shall  receive  a  salary  of  one  thousand  eight  hun- 
dred dollars  per  year  and  his  traveling  expenses  while 
er  gaged  in  the  performance  of  his  duty.  He  shall  receive 
in  addition  thereto  an  annual  allowance  for  of^ce  rent, 
stationer}^,  and  clerical  assistance,  to  be  fixed  by  the  Inter- 
st/ite  Commerce  Commission,  but  not  to  exceed  in  the  case 
of  any  district  inspector  six  hundred  dollars  per  year.  In 
order  to  obt-ain  the  most  competent  inspectors  possible,  it 
shall  be  the  duty  of  the  chief  inspector  to  prepare  a  list  of 
questions  to  be  propounded  to  applicants  with  respect  to 
construction,  repair,  operation,  testing,  and  inspection  of 
locomotive  boilers,  and  their  practical  experience  in  such 
work,  which  list,  being  approved  by  the  Interstate  Com- 
merce Commission,  shall  be  used  by  the  Civil  Service 
Commission  as  a  part  of  its  examination.  No  person  inter- 
ested, either  directly  or  indirectly,  in  any  patented  article 
required  to  be  used  on  any  locomotive  under  supervision 
or  who  is  intemperate  in  his  habits  shall  be  eligible  to  hold 
the  office  of  either  chief  inspector  or  assistant  or  district 
inspector. 

Sec.  5.  Each  carrier  subject  to  this  act  shall  file  its  rules 
and  instinictions  for  the  inspection  of  locomotive  boilers  with 
the  chief  inspector  within  three  months  after  the  approval 
of  this  act,  and  after  hearing  and  approval  by  the  Interstate 
Commerce  Commission,  such  rules  and  instructions,  with 
such  modifications  as  the  commission  requires,  shall  become 
obligatory  upon  such  carrier:  Provided,  however,  That  if 
any  carrier  subject  to  this  act  sliall  fail  to  file  its  rules  and 
instimctions  the  chief  inspector  shall  prepare  rules  and 
instructions  not  inconsistent  herewith  for  the  inspection  of 
locomotive  boilers,  to  be  observed  by  such  carrier:  which 
rules  and  instructions,  being  approved  by  the  Interstate 
Commerce  Commission,  and  a  copy  thereof  being  served 


382  APPENDIX 

upon  the  president,  general  manager,  or  general  superin- 
tendent of  such  carrier,  shall  be  obligatory,  and  a  violation 
thereof  punished  as  hereinafter  provided:  Provided  also, 
That  such  common  carrier  may  from  time  to  time  change 
the  rules  and  regulations  herein  provided  for,  but  such 
change  shall  not  take  effect  and  the  new  rules  and  regula.- 
tions  be  in  force  until  the  same  shall  have  been  filed  with 
and  approved  by  the  Interstate  Commerce  Commission. 
The  chief  inspector  shall  also  make  all  needful  rules,  regu- 
lations, and  instructions  not  inconsistent  herewith  for  the 
conduct  of  his  office  and  for  the  government  of  the  district 
inspectors:  Provided,  however,  That  all  such  rules  and 
instructions  shall  be  approved  by  the  Interstate  Commerce 
Commission  before  they  take  effect. 

Sec.  6.  It  shall  be  the  duty  of  each  inspector  to  become 
familiar,  so  far  as  practicable,  with  the  condition  of  each 
locomotive  boiler  ordinarily  housed  or  repaired  in  his  dis- 
trict, and  if  any  locomotive  is  ordinarily  housed  or  repaired 
in  two  or  more  districts,  then  the  chief  inspector  or  an 
assistant  shall  make  such  division  between  inspectors  as  will 
avoid  the  necessity  for  duplication  of  work.  Each  inspect- 
or shall  make  such  personal  inspection  of  the  locomotive 
boilers  under  his  care  from  time  to  time  as  may  be  necessary 
to  fully  carry  out  the  provisions  of  this  act,  and  as  may  be 
consistent  with  his  other  duties,  but  he  shall  not  be  required 
to  make  such  inspections  at  stated  times  or  at  regular  inter- 
vals. His  first  duty  shall  be  to  see  that  the  carriers  make 
inspections  in  accordance  with  the  rules  and  regulations 
established  or  approved  by  the  Interstate  Commerce  Com- 
mission, and  that  carriers  repair  the  defects  which  such 
inspections  disclose  before  the  boiler  or  boilers  or  appur- 
tenances pertaining  thereto  are  again  put  in  service.  To 
this  end  each  carrier  subject  to  this  act  shall  file  with  the 
inspector  in  charge,  under  the  oath  of  the  proper  oflScer  or 
employe,  a  duplicate  of  the  report  of  each  inspection  re- 
quired by  such  rules  and  regulations,  and  shall  also  file 
with  such  inspector,  under  the  oath  of  the  proper  officer  or 
employe,  a  report  showing  the  repair  of  the  defects  disclosed 


BOIL.ER   INSPECTION   ACT  383 

by  the  inspection.  The  rules  and  regulations  hereinbefore 
provided  for  shall  perscribe  the  time  at  which  such  reports 
shall  be  made.  Whenever  any  district  inspector  shall,  in 
the  performance  of  his  duty,  find  any  locomotive  boiler  or 
apparatus  pertaining  thereto  not  conforming  to  the  require- 
ments of  the  law  or  the  rules  and  regulations  established 
and  approved  as  hereinbefore  stated,  he  shall  notify  the 
carrier  in  writing  that  the  locomotive  is  not  in  serviceable 
condition,  and  thereafter  such  boiler  shall  not  be  used 
until  in  serviceable  condition:  Provided,  That  a  carrier, 
when  notified  by  an  inspector  in  writing  that  a  locomotive 
boiler  is  not  in  serviceable  condition,  because  of  defects  set 
out  and  described  in  said  notice,  may  within  five  days  after 
receiving  said  notice,  appeal  to  the  chief  inspector  by  tele- 
graph or  by  letter  to  have  said  boiler  reexamined,  and  upon 
receipt  of  the  appeal  from  the  inspector 's  decision,  the  chief 
inspector  shall  assign  one  of  the  assistant  chief  inspectors 
or  any  district  inspector  other  than  the  one  from  whose 
decision  the  appeal  is  taken  to  reexamine  and  inspect  said 
boiler  within  fifteen  days  from  date  of  notice.  If  upon 
such  reexamination  the  boiler  is  found  in  serviceable  condi- 
tion, the  chief  inspector  shall  immediately  notify  the  carrier 
in  writing,  whereupon  such  boiler  may  be  put  into  service 
without  further  delay;  but  if  the  reexamination  of  said 
boiler  sustains  the  decision  of  the  district  inspector,  the 
chief  inspector  shall  at  once  notify  the  carrier  owning  or 
operating  such  locomotive  that  the  appeal  from  the  decision 
of  the  inspector  is  dismissed,  and  upon  the  receipt  of  such 
notice  the  carrier  may,  within  thirty  days,  appeal  to  the 
Interstate  Commerce  Commission,  and  upon  such  appeal, 
and  after  hearing,  said  Commission  shall  have  power  to 
revise,  modify,  or  set  aside  such  action  of  the  chief  inspector 
and  declare  that  said  locomotive  is  in  serviceable  condition 
and  authorize  the  same  to  be  operated:  Provided  further, 
That  pending  either  appeal  the  requirements  of  the  inspector 
shall  be  effective. 

Sec.  7.     The  chief  inspector  shall  make  an  annual  report 
to  the  Interstate  Commerce  Commission  of  the  work  done 


384  APPENDIX 

during  the  year,  and  shall  make  such  recommendations  for 
the  betterment  of  the  service  as  he  may  desire. 

Sec.  8.  In  the  case  of  accident  resulting  from  failure 
from  any  cause  of  a  locomotive  boiler  or  its  appurtenances, 
resulting  in  serious  injury  or  death  to  one  or  more  persons, 
a  statement  forthwith  must  be  made  in  writing  of  the  fact 
of  such  accident,  by  the  carrier  owning  or  operating  said 
locomotive,  to  the  chief  inspector.  "Whereupon  the  facts 
concerning  such  accident  shall  be  investigated  by  the  chief 
inspector  or  one  of  his  assistants,  or  such  inspector  as  the 
chief  inspector  may  designate  for  that  purpose.  And  where 
the  locomotive  is  disabled  to  the  extent  that  it  can  not  be 
run  by  its  own  steam,  the  part  or  parts  affected  by  the  said 
accident  shall  be  preserved  by  said  carrier  intact,  so  far  as 
possible,  without  hindrance  or  interference  to  traffic  until 
after  said  inspection.  The  chief  inspector  or  an  assistant 
ar  the  designated  inspector  making  the  investigation  shall 
examine  or  cause  to  be  examined  thoroughly  the  boiler  or 
part  affected,  making  full  and  detailed  report  of  the  cause 
of  the  accident  to  the  chief  inspector. 

The  Interstate  Commerce  Commission  maj^  at  any  time 
call  upon  the  chief  inspector  for  a  report  of  any  accident 
embraced  in  this  section,  and  upon  the  receipt  of  said  report, 
if  it  deems  it  to  the  public  interest,  make  reports  of  such 
investigations,  stating  the  cause  of  accident,  together  with 
such  recommendations  as  it  deems  proper.  Such  reports 
shall  be  made  public  in  such  manner  as  the  commission 
deems  proper.  Neither  said  report  nor  any  report  of  said 
investigation  nor  any  part  thereof  shall  be  admitted  as 
evidence  or  used  for  any  purpose  in  any  suit  or  action 
for  damages  growing  out  of  any  matter  mentioned  in  said 
report  or  investigation. 

Sec.  9.  Any  common  carrier  violating  this  act  or  any 
rule  or  regulation  made  under  its  provisions  or  any  lawful 
order  of  any  inspector  shall  be  liable  to  a  penalty  of  one 
hundred  dollars  for  each  and  every  such  violation,  to  be 
recovered  in  a  suit  or  suits  to  be  brought  by  the  United 
States  attorney  in  the  district  court  of  the  United  States 


boHjER  inspection  act  385 

having  jurisdiction  in  the  locality  where  such  violation  shall 
have  been  committed;  and  it  shall  be  the  duty  of  such 
attorneys,  subject  to  the  direction  of  the  Attorney  General, 
to  bring  such  suits  upon  duly  verified  information  being 
lodged  with  them,  respectively,  of  such  violations  having 
occurred;  and  it  shall  be  the  duty  of  the  chief  inspector 
of  locomotive  boilers  to  give  information  to  the  proper 
United  States  attorney  of  all  violations  of  this  act  coming 
to  his  knowledge. 

Sec.  10.  The  total  amounts  directly  appropriated  to 
carry  out  the  provisions  of  this  act  shall  not  exceed  for  any 
one  fiscal  year  the  sum  of  three  hundred  thousand  dollars. 


iiooerts  XJablUties— 25 


APPENDIX  J 

FEDERAL  SAFETY  APPLIANCE  ACTS 

An  act  to  promote  the  safety  of  employes  and  travelers 
upon  railroads  by  compelling  common  carriers  engaged 
in  interstate  commerce  to  equip  their  cars  with  automatic 
couplers  and  continuous  brakes  and  their  locomotives  with 
driving-wheel  brakes,  and  for  other  purposes. 

Section  1.  From  and  after  the  first  day  of  January, 
eighteen  hundred  and  ninety-eight,  it  shall  be  unlawful  for 
any  common  carrier  engaged  in  interstate  commerce  by  rail- 
road to  use  on  its  line  any  locomotive  engine  in  moving 
interstate  traffic  not  equipped  with  a  power  driving-wheel 
brake  and  appliances  for  operating  the  train  brake  system, 
or  to  run  any  train  in  such  traffic  after  said  date  that  has 
not  a  sufficient  number  of  cars  in  it  so  equipped  with  power 
or  train  brakes  that  the  engineer  on  the  locomotive  drawing 
such  train  can  control  its  speed  without  requiring  brakeman 
to  use  the  common  hand  brake  for  that  purpose. 

Sec.  2.  On  and  after  the  first  day  of  January,  eighteen 
hundred  and  ninety-eight,  it  shall  be  unlawful  for  any  such 
common  carrier  to  haul  or  permit  to  be  hauled  or  used  on 
its  line  any  car  used  in  moving  interstate  traffic  not  equipped 
with  couplers  coupling  automatically  by  impact,  and  which 
can  be  uncoupled  without  the  necessity  of  men  going  be- 
tween the  ends  of  the  cars. 

Sec.  3.  When  any  person,  firm,  company,  or  corporation 
engaged  in  interstate  commerce  by  railroad  shall  have 
equipped  a  sufficient  number  of  its  cars  so  as  to  comply 
with  the  provisions  of  section  one  of  this  act,  it  may  law- 
fully refuse  to  receive  from  connecting  lines  of  road  or 

386 


SAFETY   APPLIANCE   ACTS  387 

shippers  any  cars  not  equipped  sufficiently,  in  accordance 
with  the  first  section  of  this  act,  with  such  power  or  train 
brakes  as  will  work  and  readily  interchange  with  the  brakes 
in  use  on  its  own  cars,  as  required  by  this  act. 

Sec.  4.  From  and  after  the  first  day  of  July,  eighteen 
hundred  and  ninety-five,  until  otherwise  ordered  by  the 
Interstate  Commerce  Commission,  it  shall  be  unlawful  for 
any  railroad  company  to  use  any  car  in  interstate  commerce 
that  is  not  provided  with  secure  grab  irons  or  handholds  in 
the  ends  and  sides  of  each  car  for  greater  security  to  men  in 
coupling  and  uncoupling  cars. 

Sec.  5.  Within  ninety  days  from  the  passage  of  this 
act  the  American  Railway  Association  is  authorized  hereby 
to  designate  to  the  Interstate  Commerce  Commission  the 
standard  height  of  draw  bars  for  freight  cars,  measured 
perpendicular  from  the  level  of  the  tops  of  the  rails  to  the 
centers  of  the  draw  bars,  for  each  of  the  several  gauges  of 
railroads  in  use  in  the  United  States,  and  shall  fix  a  maxi- 
mum variation  from  such  standard  height  to  be  allowed 
between  the  draw  bars  of  empty  and  loaded  cars.  Upon 
their  determination  being  certified  to  the  Interstate  Com- 
merce Commission,  said  Commission  shall  at  once  give 
notice  of  the  standard  fixed  upon  to  all  common  carriers, 
owners,  or  lessees  engaged  in  interstate  commerce  in  the 
United  States  by  such  means  as  the  Commission  may  deem 
proper.  But  should  said  association  fail  to  determine  a 
standard  as  above  provided,  it  shall  be  the  duty  of  the 
Interstate  Commerce  Commission  to  do  so,  before  July  first, 
eighteen  hundred  and  ninety-four,  and  immediately  to  give 
notice  thereof  as  aforesaid.  And  after  July  first,  eighteen 
hundred  and  ninety-five,  no  cars  either  loaded  or  unloaded, 
shall  be  used  in  interstate  traffic  which  do  not  comply  with 
the  standard  above  provided  for. 

Sec.  6.  (As  amended  by  the  act  of  April  1,  1896.) 
Any  such  common  carrier  using  any  locomotive  engine, 
running  any  train,  or  hauling  or  permitting  to  be 
hauled  or  used  on  its  line  any  car  in  violation  of  any  of 
the  provisions  of  this  act,  shall  be  liable  to  a  penalty  of 


388  APPENDK 

one  hundred  dollars  for  each  and  every  such  violation,  to  be 
recovered  in  a  suit  or  suits  to  be  brought  by  the  United 
States  district  attorney  in  the  district  court  of  the  United 
States  having  jurisdiction  in  the  locality  where  such  viola- 
tion shall  have  been  committed ;  and  it  shall  be  the  duty  of 
such  district  attorney  to  bring  such  suits  upon  duly  verified 
information  being  lodged  with  him  of  such  violation  having 
occurred;  and  it  shall  also  be  the  duty  of  the  Interstate 
Commerce  Commission  to  lodge  with  the  proper  district 
attorneys  information  of  any  such  violations  as  may  come 
to  its  knowledge:  Provided,  That  nothing  in  this  act  con- 
tained shall  apply  to  trains  composed  of  four-wheeled  cars 
or  to  trains  composed  of  eight-wheel  standard  logging  cars 
where  the  height  of  such  car  from  top  of  rail  to  center  of 
coupling  does  not  exceed  twenty-five  inches,  or  to  locomo- 
tives used  in  hauling  such  trains  when  such  cars  or  loco- 
motives are  exclusively  used  for  the  transportation  of  logs. 

Sec.  7.  The  Interstate  Commerce  Commission  may  from 
time  to  time  upon  full  hearing  and  for  good  cause  extend 
the  period  within  which  any  common  carrier  shall  comply 
with  the  provisions  of  this  act. 

Sec.  8.  Any  employe  of  any  such  common  carrier  who 
may  be  injured  by  any  locomotive,  car,  or  train  in  use 
contrary  to  the  provisions  of  this  act  shall  not  be  deemed 
thereby  to  have  assumed  the  risk  thereby  occasioned,  al- 
though continuing  in  the  employment  of  such  carrier  after 
the  unlawful  use  of  such  locomotive,  car,  or  train  had  been 
brought  to  his  knowledge. 

AMENDMENT  OF  1903  TO  FEDERAL  SAFETY 
APPLIANCE  ACT  OF  1893 

An  act  to  amend  an  act  entitled,  "An  act  to  promote  the 
safety  of  employes  and  travelers  upon  railroads  by  com- 
pelling common  carriers  engaged  in  interstate  commerce 
to  equip  their  cars  with  automatic  couplers  and  continu- 
ous brakes  and  their  locomotives  with  driving-wheel 
brakes,  and  for  other  purposes, ' '  approved  March  second, 


SAFETY  APPLIANCE  ACTS  389 

eighteen  hundred  and  ninety-three,  and  amended  April 
first,  eighteen  hundred  and  ninety-six. 

Section  1.  The  provisions  and  requirements  of  the  act 
entitled  *'An  act  to  promote  the  safety  of  employes  and 
travelers  upon  railroads  by  compelling  common  carriers 
engaged  in  interstate  commerce  to  equip  their  cars  with 
automatic  couplers  and  continuous  brakes  and  their  loco- 
motives with  driving-wheel  brakes,  and  for  other  purposes, ' ' 
approved  March  second,  eighteen  hundred  and  ninety-three, 
and  amended  April  first,  eighteen  hundred  and  ninety-six 
[see  pp.  2401,  2402],  shall  be  held  to  apply  to  common 
carriers  by  railroads  in  the  Territories  and  the  District  of 
Columbia  and  shall  apply  in  all  cases,  whether  or  not  the 
couplers  brought  together  are  of  the  same  kind,  make,  or 
type ;  and  the  provisions  and  requirements  hereof  and  of 
said  acts  relating  to  train  brakes,  automatic  couplers,  grab 
irons,  and  the  height  of  drawbars  shall  be  held  to  apply  to 
all  trains,  locomotives,  tenders,  cars,  and  similar  vehicles 
used  on  any  railroad  engaged  in  interstate  commerce,  and 
in  the  Territories  and  the  District  of  Columbia,  and  to  all 
other  locomotives,  tenders,  cars,  and  similar  vehicles  used 
in  connection  therewith,  excepting  those  trains,  ears,  and 
locomotives  exempted  by  the  provisions  of  section  six  of 
said  act  of  March  second,  eighteen  hundred  and  ninety- 
three,  as  amended  by  the  act  of  April  first,  eighteen  hundred 
and  ninety-six,  or  which  are  used  upon  street  railways. 

Sec.  2.  Whenever,  as  provided  in  said  act,  any  train 
is  operated  with  power  or  train  brakes,  not  less  than  fifty 
per  centum  of  the  cars  in  such  train  shall  have  their  brakes 
used  and  operated  by  the  engineer  of  the  locomotive  draw- 
ing such  train ;  and  all  power-braked  cars  in  such  train 
which  are  associated  together  with  said  fifty  per  centum 
shall  have  their  brakes  so  used  and  operated ;  and,  to  more 
fuUy  carry  into  effect  the  objects  of  said  act,  the  Interstate 
Commerce  Commission  may,  from  time  to  time,  after  full 
hearing,  increase  the  minimum  percentage  of  cars  in  any 
train  required  to  be  operated  with  power  ar  train  brakes 


390  APPENDIX 

which  must  have  their  brakes  used  and  operated  as  afore- 
said; and  failure  to  comply  with  any  such  requirements 
of  the  said  Interstate  Commerce  Commission  shall  be  subject 
to  the  like  penalty  as  failure  to  comply  with  any  require- 
ment of  this  section. 

Sec.  3.  The  provisions  of  tliis  act  shall  not  take  effect 
until  September  first,  nineteen  hundred  and  three.  Nothing 
in  this  act  shall  be  held  or  construed  to  relieve  any  common 
carrier,  the  Interstate  Commerce  Commission,  or  any  United 
States  district  attorney  from  any  of  the  provisions,  powers, 
duties,  liabilities,  or  requirements  of  said  act  of  March 
second,  eighteen  hundred  and  ninety-three,  as  amended  by 
the  act  of  April  first,  eighteen  hundred  and  ninety-six ;  and 
all  of  the  provisions,  powers,  duties,  requirements  and 
liabilities  of  said  act  of  March  second,  eighteen  hundred 
and  ninety-three,  as  amended  by  the  act  of  April  first, 
eighteen  hundred  and  ninety-six,  shall,  except  as  specifically 
amended  by  this  act,  apply  to  this  act. 

Approved  March  2nd,  1903.     32  Stat,  at  L.  943,  c.  976. 

AMENDMENT  OF  1910  TO  FEDERAL  SAFETY 
APPLIANCE  ACT   OF  1893 

An  Act  to  supplement  "An  act  to  promote  the  safety  of 
employes  and  travelers  upon  railroads  by  compelling  com- 
mon carriers  engaged  in  interstate  commerce  to  equip 
their  ears  with  automatic  couplers  and  continuous  brakes 
and  their  locomotives  with  driving  wheel  brakes  and 
for  other  purposes, ' '  and  other  safety  appliance  acts,  and 
for  other  purposes. 

Be  it  enacted  hy  the  Senate  and  House  of  Representatives 
of  the  United  States  of  America  in  Congress  assembled, 
That  the  provisions  of  this  act  shall  apply  to  every  common 
carrier  and  every  vehicle  subject  to  the  act  of  March  second, 
eighteen  hundred  and  ninety-tliree,  as  amended  April  first, 
eighteen  hundred  and  ninety-six,  and  March  second,  nine- 


SAFETY  APPLIANCE  ACTS  391 

teen  hundred  and  three,  commonly  known  as  the  "Safety 
Appliance  Acts. ' ' 

Sec.  2.  That  on  and  after  July  first,  nineteen  hundred 
and  eleven,  it  shall  be  unlawful  for  any  common  carrier 
subject  to  the  provisions  of  this  act  to  haul,  or  permit  to 
be  hauled  or  used  on  its  line  any  car  subject  to  the  provi- 
sions of  this  act  not  equipped  with  appliances  provided  for 
in  this  act,  to-wit :  All  cars  must  be  equipped  with  secure 
sill  steps  and  efficient  hand  brakes ;  all  cars  requiring  secure 
ladders  and  secure  running  boards  shall  be  equipped  with 
such  ladders  and  running  boards,  and  all  cars  having  ladders 
shall  also  be  equipped  with  secure  hand  holds  or  grab  irons 
on  their  roofs  at  the  tops  of  such  ladders :  Provided,  That  in 
the  loading  and  hauling  of  long  commodities,  requiring  more 
than  one  car,  the  hand  brakes  may  be  omitted  on  all  save 
one  of  the  cars  while  they  are  thus  combined  for  such 
purpose. 

Sec.  3.  That  within  six  months  from  the  passage  of  this 
act  the  Interstate  Commerce  Commission,  after  hearing, 
shall  designate  the  number,  dimensions,  location,  and  man- 
ner of  application  of  the  appliances  provided  for  by  section 
two  of  this  act  and  section  four  of  the  act  of  March  second, 
eighteen  hundred  and  ninety-three,  and  shall  give  notice 
of  such  designation  to  all  common  carriers  subject  to  the 
provisions  of  this  act  by  such  means  as  the  commission  may 
deem  proper,  and  thereafter  said  number,  location,  dimen- 
sions, and  manner  of  application  as  designated  by  said 
commission  shall  remain  as  the  standards  of  equipment  to 
be  used  on  all  cars  subject  to  the  provisions  of  this  act, 
unless  changed  by  an  order  of  said  Interstate  Commerce 
Commission,  to  be  made  after  full  hearing  and  for  good 
cause  shown ;  and  failure  to  comply  with  any  such  require- 
ment of  the  Interstate  Commerce  Commission,  to  be  made 
after  full  hearing,  and  for  good  cause  shown ;  and  failure 
to  comply  with  any  such  requirement  of  the  Interstate 
Commerce  Commission  shall  be  subject  to  a  like  penalty 
as  failure  to  comply  with  any  requirement  of  this  act: 
Provided,  That  the  Interstate  Commerce  Commission  may, 


392  APPENDIX 

upon  full  hearing  and  for  good  cause,  extend  the  period 
within  which  any  common  carrier  shall  comply  with  the 
provisions  of  this  section  with  respect  to  the  equipment  of 
cars  actually  in  service  upon  the  date  of  the  passage  of  this 
act.  Said  commission  is  hereby  given  authority,  after  hear- 
ing, to  modify  or  change,  and  to  prescribe  the  standard 
height  of  drawbars  and  to  fix  the  time  within  which  such 
modification  or  change  shall  become  effective  and  obliga- 
tory, and  prior  to  the  time  so  fixed  it  shall  be  unlawful  to 
use  any  car  or  vehicle  in  interstate  or  foreign  traffic  which 
does  not  comply  with  the  standard  now  fixed  or  the  standard 
so  prescribed,  and  after  the  time  so  fixed  it  shall  be  unlawful 
to  use  any  car  or  vehicle  in  interstate  or  foreign  traffic  which 
does  not  comply  with  the  standard  so  prescribed  by  the 
commission. 

Sec.  4.  That  any  common  carrier  subject  to  this  act 
using,  hauling,  or  permitting  to  be  used  or  hauled  on  its 
line,  any  car  subject  to  the  requirements  of  this  act  not 
equipped  as  provided  in  this  act,  shall  be  liable  to  a  penalty 
of  one  hundred  dollars  for  each  and  every  such  violation, 
to  be  recovered  as  provided  in  section  six  of  the  act  of 
March  second,  eighteen  hundred  and  ninety-three,  as 
amended  April  first,  eighteen  hundred  and  ninety-six: 
Provided,  That  where  any  car  shall  have  been  properly 
equipped,  as  provided  in  this  act  and  the  other  acts  men- 
tioned herein,  and  such  equipment  shall  have  become  de- 
fective or  insecure  while  such  car  was  being  used  by  such 
carrier  upon  its  line  of  railroad,  such  car  may  be  hauled 
from  the  place  where  such  equipment  was  first  discovered 
to  be  defective  or  insecure  to  the  nearest  available  point 
where  such  car  can  be  repaired,  without  liability  for  the 
penalties  imposed  by  section  four  of  this  act  or  section  six 
of  the  act  of  March  second,  eighteen  hundred  and  ninety- 
three,  as  amended  by  the  act  of  April  first,  eighteen  hundred 
and  ninety-six,  if  such  movement  is  necessary  to  make  such 
repairs  and  such  repairs  can  not  be  made  except  at  such 
repair  point ;  and  such  movement  or  hauling  of  such  car 
shall  be  at  the  sole  risk  of  the  carrier,  and  nothing  in  this 


SAPETY   APPLIANCE   ACTS  393 

section  shall  be  constmed  to  relieve  such  carrier  from 
liability  in  any  remedial  action  for  the  death  or  injury  of 
any  railroad  employe  caused  to  such  employe  by  reason  of 
or  in  connection  with  the  movement  or  hauling  of  such  car 
with  equipment  which  is  defective  or  insecure  or  which  is 
not  maintained  in  accordance  with  the  requirements  of  this 
act  and  the  other  acts  herein  referred  to;  and  nothing  in 
this  proviso  shall  be  construed  to  permit  the  hauling  of 
defective  cars  by  means  of  chains  instead  of  drawbars,  in 
revenue  trains  or  in  association  with  other  cars  that  are 
commercially  used,  unless  such  defective  cars  contain  live 
stock  or  "perishable"  freight. 

Sec.  5.  That  except  that,  within  the  limits  specified  in 
the  preceding  section  of  this  act,  the  movement  of  a  car 
with  defective  or  insecure  equipment  may  be  made  without 
incurring  the  penalty  provided  by  the  statutes,  but  shall  in 
all  other  respects  be  unlawful,  nothing  in  this  act  shall  be 
held  or  construed  to  relieve  any  common  carrier,  the  Inter- 
state Commerce  Commission,  or  any  United  States  attorney 
from  any  of  the  provisions,  powers,  duties,  liabilities,  or 
requirements  of  said  act  of  March  second,  eighteen  hundred 
and  ninety-three,  as  amended  by  the  acts  of  April  first, 
eighteen  hundred  and  ninety-six,  and  March  second,  nine- 
teen hundred  and  three ;  and,  except  as  aforesaid,  all  of  the 
provisions,  powers,  duties,  requirements  and  liabilities  of 
said  act  of  March  second,  eighteen  hundred  and  ninety- 
three,  as  amended  by  the  acts  of  April  first,  eighteen  hundred 
and  ninety-six,  and  March  second,  nineteen  hundred  and 
three,  shall  apply  to  this  act. 

Sec.  6.  That  it  shall  be  the  duty  of  the  Interstate  Com- 
merce Commission  to  enforce  the  provisions  of  this  act,  and 
all  powers  heretofore  granted  to  said  commission  are  hereby 
extended  to  it  for  the  purpose  of  the  enforcement  of  this 
act. 

Approved,  April  14,  1910. 


APPENDIX  K 

ORDER   OF   THE   INTERSTATE   COIJOIERCE   COM- 
MISSION JUNE  6,  1910 

IN    EE   MINIMUM    PERCENTAGE   QF   POWER    BRAKES 

The  Commission  having  mider  consideration  the  question 
of  requiring  an  increase  in  the  minimum  percentage  of 
power  brakes  to  be  used  and  operated  on  trains  and  railroads 
engaged  in  interstate  commerce,  as  provided  by  section  two 
of  the  act  of  March  2,  1903,  and  it  appearing  to  the  Com- 
mission, after  full  hearing  had  on  May  5,  1909,  due  notice 
of  which  was  given  all  common  carriers,  owners  and  lessees 
engaged  in  interstate  commerce  by  railroad  in  the  United 
States,  and  at  which  time  aU  interested  parties  were  given 
an  opportunity  to  be  heard  and  submit  their  views,  that  to 
secure  more  fully  the  objects  of  the  act  to  promote  the 
safety  of  employes  and  travelers  on  railroads,  the  minimum 
percentage  of  power-brake  cars  to  be  used  in  trains,  as 
established  by  its  order  of  November  15,  1905,  should  be 
further  increased. 

It  is  ordered,  That  on  and  after  September  1,  1910,  on  all 
railroads  used  in  interstate  commerce,  whenever,  as  required 
by  the  Safety  Appliance  Act  as  amended  March  2,  1903, 
any  train  is  operated  with  power  or  train  brakes,  not  less 
than  eighty-five  per  cent  of  the  cars  of  such  train  shall  have 
their  brakes  used  and  operated  by  the  engineer  of  the  loco- 
motive drawing  such  train,  and  aU  power-brake  cars  in 
every  such  train  which  are  associated  together  with  the 
eighty-five  per  cent  shall  have  their  brakes  so  used  and 
operated. 

394 


APPENDIX  L 

ORDER  OF   THE   INTERSTATE   COMMERCE   COM- 
MISSION, OCTOBER  10,  1910 

IN  RE  STANDARD  HEIGHT  OP  DRAWBARS 

Whereas,  by  the  third  section  of  an  act  of  Congress 
approved  April  14,  1910,  entitled  "An  act  to  supplement 
'An  act  to  promote  the  safety  of  employes  and  travelers 
upon  railroads  by  compelling  common  carriers  engaged  in 
interstate  commerce  to  equip  their  cars  with  automatic 
couplers  and  continuous  brakes  and  their  locomotives  with 
driving-wheel  brakes  and  for  other  purposes,'  and  other 
safety  appliance  acts,  and  for  other  purposes,"  it  is  pro- 
vided, among  other  things,  that  the  Interstate  Commerce 
Commission  is  hereby  given  authority,  after  hearing,  to 
modify  or  change  and  to  prescribe  the  standard  height  of 
drawbars  and  to  fix  the  time  within  which  such  modification 
or  change  shall  become  effective  and  obligatory,  and 

Whereas,  a  hearing  in  the  matter  of  any  modification  or 
change  in  the  standard  height  of  drawbars  was  held  before 
the  Interstate  Commerce  Commission  at  its  office  in  Wash- 
ington, D.  C,  on  June  7,  1910, 

Now,  therefore,  in  pursuance  of  and  in  accordance  with 
the  provisions  of  said  section  3  of  said  act. 

It  is  ordered,  That  (except  on  cars  specified  in  the 
proviso  in  section  6  of  the  Safety  Appliance  Act  of  March 
2,  1893,  as  the  same  was  amended  April  1,  1896)  the  stand- 
ard height  of  drawbars  heretofore  designated  in  compliance 
with  law  is  hereby  modified  and  changed  in  the  manner 
hereinafter  prescribed — to-wit:  The  maximum  height  of 
drawbars  for  freight  cars  measured  perpendicularly  from 

'  395 


396  APPENDIX 

the  level  of  the  tops  of  rails  to  the  centers  of  drawbars  for 
standard-gauge  railroads  in  the  United  States  subject  to 
said  act  shall  be  341/2  inches,  and  the  minimum  height  of 
drawbars  for  freight  cars  on  such  standard-gauge  railroads 
measured  in  the  same  manner  shall  be  31 1^  inches,  and  on 
narrow-gauge  railroads  in  the  United  States  subject  to  said 
act  the  maximum  height  of  drawbars  for  freight  cars  meas- 
ured from  the  level  of  the  tops  of  rails  to  the  centers  of 
drawbars  shall  be  26  inches,  and  the  minimum  height  of 
drawbars  for  freight  cars  on  such  narrow-gauge  railroads 
measured  in  the  same  manner  shall  be  23  inches,  and  on 
2-foot-gauge  railroads  in  the  United  States  subject  to 
said  act  the  maximum  height  of  drawbars  for  freight  cars 
measured  from  the  level  of  the  tops  of  rails  to  the  centers 
of  drawbars  shall  be  171/2  inches,  and  the  minimum  height 
of  drawbars  for  freight  cars  on  such  2-foot-gauge  railroads 
measured  in  the  same  manner  shall  be  141/0  inches. 

And  it  is  further  ordered,  That  such  modification  or 
change  shall  become  effective  and  obligatory  December 
31,  1910. 


APPENDIX  M 

ORDER   OF  THE   INTERSTATE   COMMERCE  COM- 
MISSION, MARCH  13,  1911 

IN  RE  DESIGNATING  THE  NUMBER,  DIMENSIONS,  LOCATION,  AND 
MANNER  OP  APPLICATION  OP  CERTAIN  SAFETY  APPLIANCES 

Whereas  by  the  third  section  of  an  act  of  Congress  ap- 
proved April  14,  1910,  entitled  "An  act  to  supplement  'An 
act  to  promote  the  safety  of  employes  and  travelers  upon 
railroads  by  compelling  common  carriers  engaged  in  inter- 
state commerce  to  equip  their  cars  with  automatic  couplers 
and  continuous  brakes  and  their  locomotives  with  driving- 
wheel  brakes,  and  for  other  purposes,'  and  other  safety 
appliance  acts,  and  for  other  purposes,"  it  is  provided, 
among  other  things,  "That  within  six  months  from  the 
passage  of  this  act  the  Interstate  Commerce  Commission, 
after  hearing,  shall  designate  the  number,  dimensions, 
location,  and  manner  of  application  of  the  appliances  pro- 
vided for  by  section  two  of  this  act  and  section  four  of  the 
act  of  March  second,  eighteen  hundred  and  ninety-three, 
and  shaU  give  notice  of  such  designation  to  all  common 
carriers  subject  to  the  provisions  of  this  act  by  such  means 
as  the  Commission  may  deem  proper,  and  thereafter  said 
number,  location,  dimensions,  and  manner  of  application  as 
designated  by  said  Commission  shaU  remain  as  the  standards 
of  equipment  to  be  used  on  all  cars  subject  to  the  provisions 
of  this  act,  unless  changed  by  an  order  of  said  Interstate 
Commerce  Commission,  to  be  made  after  fuU  hearing  and 
for  good  cause  shown ;  and  failure  to  comply  with  any  such 
requirement  of  the  Interstate  Commerce  Commission  shall 
be  subject  to  a  like  penalty  as  failure  to  comply  with  any 

397 


398  APPENDIX 

requirement  of  this  act:  Provided,  That  the  Interstate 
Commerce  Commission  may,  upon  full  hearing  and  for  good 
cause,  extend  the  period  within  which  any  common  carrier 
shall  comply  with  the  provisions  of  this  section  with  respect 
to  the  equipment  of  cars  actually  in  service  upon  the  date 
of  passage  of  this  act ; ' '  and 

Whereas  hearings  in  the  matter  of  the  number,  dimen- 
sions, location,  and  manner  of  application  of  the  appliances, 
as  provided  in  said  section  of  said  act,  were  held  before 
the  Interstate  Commerce  Commission  at  its  office  in  Wash- 
ington, D.  C,  on  September  29th  and  30th  and  October 
7th,  1910,  respectively;  and  February  27th,  1911; 

Now,  therefore,  in  pursuance  of  and  in  accordance  with 
the  provisions  of  said  section  three  of  said  act,  and  super- 
seding the  Commission 's  order  of  October  13,  1910,  relative 
thereto 

It  is  ordered,  That  the  number,  dimensions,  location,  and 
manner  of  application  of  the  appliances  provided  for  by 
section  two  of  the  act  of  April  14,  1910,  and  section  four  of 
the  act  of  March  2,  1893,  shall  be  as  follows: 

BOX  AND  OTHER  HOUSE  CARS 

HAND-BRAKES 

Number  :  Each  box  or  other  house  car  shall  be  equipped 
with  an  efficient  hand-brake  which  shall  operate  in  harmony 
with  the  power-brake  thereon. 

The  hand-brake  may  be  of  any  efficient  design,  but  must 
provide  the  same  degree  of  safety  as  the  design  shown  on 
Plate  A. 

Dimensions:  The  brake-shaft  shall  be  not  less  than  one 
and  one-fourth  (1^)  inches  in  diameter,  of  wrought  iron  or 
steel  without  weld. 

The  brake-wheel  may  be  flat  or  dished,  not  less  than  fifteen 
(15),  preferably  sixteen  (16),  inches  in  diameter,  of  malle- 
able iron,  wrought  iron  or  steel. 

Location  :  The  hand-brake  shall  be  so  located  that  it  can 
be  safely  operated  while  car  is  in  motion. 


ORDER  RELATIVE  TO  SAFETY  APPLIANCES       399 

The  brake-shaft  shall  be  located  on  end  of  car,  to  the  left 
of  and  not  less  than  seventeen  (17)  nor  more  than  twenty- 
two  (22)  inches  from  center. 

Manner  of  Application:  There  shall  be  not  less  than 
four  (4)  inches  clearance  around  rim  of  brake-wheel. 

Outside  edge  of  brake-wheel  shall  be  not  less  than  four 
(4)  inches  from  a  vertical  plane  parallel  with  end  of  car 
and  passing  through  the  inside  face  of  knuckle  when  closed 
with  coupler-horn  against  the  buffer-block  or  end-sill. 

Top  brake-shaft  support  shall  be  fastened  with  not  less 
than  one-half  (i/o)  inch  bolts  or  rivets.     (See  Plate  A.) 

A  brake-shaft  step  shall  support  the  lower  end  of  brake- 
shaft.  A  brake-shaft  step  which  will  permit  the  brake- 
chain  to  drop  under  the  brake-shaft  shall  not  be  used. 
U-shaped  form  of  brake-shaft  step  is  preferred.  (See 
Plate  A.) 

Brake-shaft  shall  be  arranged  with  a  square  fit  at  its 
upper  end  to  secure  the  hand-brake  wheel;  said  square  fit 
shall  be  not  less  than  seven-eighths  (Yg)  of  an  inch  square. 
Square-fit  taper;  nominally  two  (2)  in  twelve  (12)  inches. 
(See  Plate  A.) 

Brake-chain  shall  be  of  not  less  than  three-eighths  (%), 
preferably  seven-sixteenths  (Viq),  inch  wrought  iron  or 
steel,  with  a  link  on  the  brake-rod  end  of  not  less  than  seven- 
sixteenths  (Viq),  preferably  one-half  (1/2),  inch  wrought 
iron  or  steel,  and  shall  be  secured  to  brake-shaft  drum  by 
not  less  than  one-half  (%)  inch  hexagon  or  square-headed 
bolt.  Nut  on  said  bolt  shall  be  secured  by  riveting  end  of 
bolt  over  nut.     (See  Plate  A.) 

Lower  end  of  brake-shaft  shall  be  provided  with  a  trun- 
nion of  not  less  than  three-fourths  (%),  preferably  one  (1), 
inch  in  diameter  extending  through  brake-shaft  step  and 
held  in  operating  position  by  a  suitable  cotter  or  ring. 
(See  Plate  A.) 

Brake-shaft  drum  shall  be  not  less  than  one  and  one-half 
(11/4)  inches  in  diameter.     (See  Plate  A.) 

Brake  ratchet-wheel  shall  be  secured  to  brake-shaft  by  a 
key  or  square  fit ;  said  square  fit  shall  be  not  less  than  one 


400  APPENDIX 

and  five-sixteenths  (1%6)  inches  square.  When  ratchet- 
wheel  with  square  fit  is  used  provision  shall  be  made  to 
prevent  ratchet-wheel  from  rising  on  shaft  to  disengage 
brake-pawl.     (See  Plate  A.) 

Brake  ratchet-wheel  shall  be  not  less  than  five  and  one- 
fourth  (51/4),  preferably  five  and  one-half  (5^/^),  inches  in 
diameter  and  shall  have  not  less  than  fourteen  (14),  prefer- 
ably sixteen  (16),  teeth.     (See  Plate  A.) 

If  brake  ratchet-wheel  is  more  than  thirty-six  (36)  inches 
from  brake-wheel,  a  brake-shaft  support  shall  be  provided 
to  support  this  extended  upper  portion  of  brake-shaft ;  said 
brake-shaft  support  shall  be  fastened  with  not  less  than  one- 
half  (1/^)  inch  bolts  or  rivets. 

The  brake-pawl  shall  be  pivoted  upon  a  bolt  or  rivet  not 
less  than  five-eighths  (%)  of  an  inch  in  diameter,  or  upon  a 
trunnion  secured  by  not  less  than  one-half  (i^)  inch  bolt 
or  rivet,  and  there  shall  be  a  rigid  metal  connection  between 
brake-shaft  and  pivot  of  pawl. 

Brake-wheel  shall  be  held  in  position  on  brake-shaft  by  a 
nut  on  a  threaded  extended  end  of  brake-shaft;  said 
threaded  portion  shall  be  not  less  than  three-fourths  (%) 
of  an  inch  in  diameter ;  said  nut  shall  be  secured  by  riveting 
over  or  by  the  use  of  lock-nut  or  suitable  cotter. 

Brake-wheel  shall  be  arranged  with  a  square-fit  for  brake- 
shaft  in  hub  of  said  wheel ;  taper  of  said  fit,  nominally  two 
(2)  in  twelve  (12)  inches.     (See  Plate  A.) 

BRAKE-STEP 

If  brake-step  is  used,  it  shaU  be  not  less  than  twenty-eight 
(28)  inches  in  length.  Outside  edge  shall  be  not  less  than 
eight  (8)  inches  from  face  of  car  and  not  less  than  four  (4) 
inches  from  a  vertical  plane  parallel  with  end  of  car  and 
passing  through  the  inside  face  of  knuckle  when  closed  with 
coupler-horn  against  the  buffer-block  or  end-sill. 

Manner  of  Application  :  Brake-step  shall  be  supported 
by  not  less  than  two  metal  braces  having  a  minimum  cross- 
sectional  area  three-eighths  (%)  by  one  and  one-half  (1^^) 


ORDER  RELATIVE  TO  SAFETY  APPLIANCES       401 

inches  or  equivalent,  which  shall  be  securely  fastened  to 
body  of  car  with  not  less  than  one-half  (I/2)  inch  bolts  or 
rivets. 

RUNNING-BOARDS 

Number:  One  (1)  longitudinal  running-board. 

On  outside-metal-roof  cars  two  (2)  latitudinal  extensions. 

Dimensions:  Longitudinal  running-board  shall  be  not 
less  than  eighteen  (18),  preferably  twenty  (20),  inches  in 
width. 

Latitudinal  extensions  shall  be  not  less  than  twenty-four 
(24)  inches  in  width. 

Location  :  P^uU  length  of  car,  center  of  roof. 

On  outside-metal-roof  cars  there  shall  be  two  (2)  lati- 
tudinal extensions  from  longitudinal  running-board  to  lad- 
der locations,  except  on  refrigerator  ears  where  such  lati- 
tudinal extensions  can  not  be  applied  on  account  of  ice 
hatches. 

Manner  op  Application:  Running-boards  shall  be  con- 
tinuous from  end  to  end  and  not  cut  or  hinged  at  any  point : 
Provided,  That  the  length  and  width  of  running-boards  may 
be  made  up  of  a  number  of  pieces  securely  fastened  to 
saddle-blocks  with  screws  or  bolts. 

The  ends  of  longitudinal  running-board  shall  be  not  less 
than  six  (6)  nor  more  than  ten  (10)  inches  from  a  vertical 
plane  parallel  with  end  of  car  and  passing  through  the 
inside  face  of  knuckle  when  closed  with  coupler-horn  against 
the  buffer-block  or  end-sill;  and  if  more  than  four  (4) 
inches  from  edge  of  roof  of  car,  shall  be  securely  supported 
their  full  width  by  substantial  metal  braces. 

Running-boards  shall  be  made  of  wood  and  securely 
fastened  to  car, 

SILL-STEPS 

Number:  Four  (4). 

Dimensions:  Minimum  cross-sectional  area  one-half  (i/^) 
by  one  and  one-half  (1%)  inches,  or  equivalent,  of  wrought 
iron  or  steel. 

Roberts  Liabilities — 26 


402  APPENDIX 

Minimum  length  of  tread,  ten  (10),  preferably  twelve 
(12),  inches. 

Minimum  clear  depth,  eight  (8)  inches. 

Location  :  One  ( 1 )  near  each  end  on  each  side  of  car,  so 
that  there  shall  be  not  more  than  eighteen  (18)  inches  from 
end  of  car  to  center  of  tread  of  sill-step. 

Outside  edge  of  tread  of  step  shall  be  not  more  than  four 
(4)  inches  inside  of  face  of  side  of  car,  preferably  flush  with 
side  of  car. 

Tread  shall  be  not  more  than  twenty-four  (24) ,  preferably 
not  more  than  twenty -two  (22),  inches  above  the  top  of 
rail. 

Manner  of  Application  :  Sill-steps  exceeding  twenty-one 
(21)  inches  in  depth  shall  have  an  additional  tread. 

Sill-steps  shall  be  securely  fastened  with  not  less  than 
one-half  (V2)  inch  bolts  with  nuts  outside  (when  possible) 
and  riveted  over,  or  with  not  less  than  one-half  (I/2)  inch 
rivets. 

LADDERS 

Number:  Four  (4). 

Dimensions:  Minimum  clear  length  of  tread:  Side  lad- 
ders sixteen  (16)  inches;  end  ladders  fourteen  (14)  inches. 

Maximum  spacing  between  ladder-treads,  nineteen  (19) 
inches. 

Top  ladder-tread  shall  be  located  not  less  than  twelve  (12) 
nor  more  than  eighteen  (18)  inches  from  roof  at  eaves. 

Spacing  of  side  ladder  treads  shall  be  uniform  within  a 
limit  of  two  (2)  inches  from  top  ladder  tread  to  bottom 
tread  of  ladder. 

Maximum  distance  from  bottom  tread  of  side  ladder  to 
top  tread  of  sill-step,  twenty-one  (21)  inches. 

End  ladder  treads  shall  be  spaced  to  coincide  with  treads 
of  side  ladders,  a  variation  of  two  (2)  inches  being  allowed. 
Where  construction  of  car  wiU  not  permit  the  application 
of  a  tread  of  end  ladder  to  coincide  with  bottom  tread  of 
side  ladder,  the  bottom  tread  of  end  ladder  must  coincide 
with  second  tread  from  bottom  of  side  ladder. 


ORDER  RELATIVE  TO  SAFETY  APPLIANCES       403 

Hard-wood  treads,  minimum  dimensions  one  and  one-half 
(11/^)  by  two  (2)  inches. 

Iron  or  steel  treads,  minimum  diameter  five-eighths  (%) 
of  an  inch. 

Minimum  clearance  of  treads,  two  (2),  preferably  two 
and  one-half  (2I/2),  inches. 

Location:  One  (1)  on  each  side,  not  more  than  eight 
(8)  inches  from  right  end  of  car;  one  (1)  on  each  end,  not 
more  than  eight  (8)  inches  from  left  side  of  car;  measured 
from  inside  edge  of  ladder-stile  or  clearance  of  ladder  treads 
to  comer  of  car. 

]\Ianner  of  Application:  ]\Ietal  ladders  without  stiles 
near  corners  of  cars  shall  have  foot  guards  or  upward 
l>rojections  not  less  than  two  (2)  inches  in  height  near  inside 
end  of  bottom  treads. 

Stiles  of  ladders,  projecting  two  (2)  or  more  inches  from 
face  of  car,  will  serve  as  foot-guards. 

Ladders  shall  be  securely  fastened  with  not  less  than  one- 
half  (1/4)  inch  bolts  with  nuts  outside  (when  possible)  and 
riveted  over,  or  with  not  less  than  one-half  (1/2)  inch  rivets. 
Three-eighths  (%)  inch  bolts  may  be  used  for  wooden 
treads  which  are  gained  into  stiles. 

end-ladder  clearance 

No  part  of  car  above  end-sills  within  thirty  (30)  inches 
from  side  of  car,  except  buffer-block,  brake-shaft,  brake- 
wheel,  brake-step,  running-board  or  uncoupling-lever  shall 
extend  to  within  twelve  (12)  inches  of  a  vertical  plane 
parallel  with  end  of  car  and  passing  through  the  inside 
face  of  knuckle  when  closed  with  coupler-horn  against  the 
buffer-block  or  end-sill,  and  no  other  part  of  end  of  car  or 
fixtures  on  same  above  end-sills,  other  than  exceptions  herein 
noted,  shall  extend  beyond  the  outer  face  of  buffer-block. 

roof-  HANDHOLDS 

Number:  One  (1)  over  each  ladder. 

One  (1)  right-angle  handhold  may  take  the  place  of  two 


404  APPENDIX 

(2)  adjacent  specified  roof-handholds,  provided  the  dimen- 
sions and  locations  coincide,  and  that  an  extra  leg  is  securely 
fastened  to  car  at  point  of  angle. 

Dimensions:  Minimum  diameter,  five-eighths  (%)  of  an 
inch,  wrought  iron  or  steel. 

Minimum  clear  length,  sixteen  (16)  inches. 

Minimum  clearance,  two  (2),  preferably  two  and  one-half 
(21/2),  inches. 

Location:  On  roof  of  car:  One  (1)  parallel  to  treads  of 
each  ladder,  not  less  than  eight  (8)  nor  more  than  fifteen 
(15)  inches  from  edge  of  roof,  except  on  refrigerator  cars 
where  ice  hatches  prevent,  when  location  may  be  nearer 
edge  of  roof. 

Manner  of  Application  :  Roof -handholds  shall  be  se- 
curely fastened  with  not  less  than  one-half  (l^)  inch  bolts 
with  nuts  outside  (when  possible)  and  riveted  over,  or  with 
not  less  than  one-half  (I/2)  inch  rivets. 

side-handholds 

Number:  Four  (4). 

[Tread  of  side-ladder  is  a  side-handhold.] 

Dimensions:  Minimum  diameter,  five-eighths  (%)  of  an 
inch,  wrought  iron  or  steel. 

]\Iinimum  clear  length,  sixteen  (16)  inches,  preferably 
twenty- four  (24)  inches. 

Minimum  clearance,  two  (2),  preferably  two  and  one-half 
(214),  inches. 

Location:  Horizontal:  One  (1)  near  each  end  on  each 
side  of  car. 

Side-handholds  shall  be  not  less  than  twenty-four  (24) 
nor  more  than  thirty  (30)  inches  above  center  line  of 
coupler,  except  as  provided  above,  where  tread  of  ladder 
is  a  handhold.  Clearance  of  outer  end  of  handhold  shall 
be  not  more  than  eight  (8)  inches  from  end  of  car. 

Manner  op  Application:  Side-handholds  shall  be  se- 
curely fastened  with  not  less  than  one-half  (i/^)  inch  bolts 


ORDER  RELATIVE  TO  SAFETY  APPLIANCES       405 

with  nuts  outside  (when  possible)  and  riveted  over,  or  with 
not  less  than  one-half  (i/^)  inch  rivets. 

HORIZONTAL   END-HANDHOLDS 

Number:  Eight  (8)  or  more.  (Four  (4)  on  each  end  of 
car.) 

[Tread  of  end-ladder  is  an  end-handhold.] 

Dimensions:  Minimum  diameter,  five-eighths  (%)  of  an 
inch,  wrought  iron  or  steel. 

Minimum  clear  length,  sixteen  (16)  inches,  preferably 
twenty-four  (24)  inches. 

A  handhold  fourteen  (14)  inches  in  length  may  be  used 
where  it  is  impossible  to  use  one  sixteen  (16)  inches  in 
length. 

Minimum  clearance,  two  (2),  preferably  two  and  one-half 
(21/^),  inches. 

Location  :  One  ( 1 )  near  each  side  on  each  end  of  car,  not 
less  than  twenty-four  (24)  nor  more  than  thirty  (30)  inches 
above  center  line  of  coupler,  except  as  provided  above,  when 
tread  of  end-ladder  is  an  end-handhold.  Clearance  of  outer 
end  of  handhold  shall  be  not  more  than  eight  (8)  inches 
from  side  of  car. 

One  (1)  near  each  side  of  each  end  of  car  on  face  of  end- 
sill  or  sheathing  over  end-sill,  projecting  outward  or  down- 
ward. Clearance  of  outer  end  of  handhold  shall  be  not 
more  than  sixteen  (16)  inches  from  side  of  car. 

On  each  end  of  cars  with  platform  end-sills  six  (6)  or 
more  inches  in  width,  measured  from  end-post  or  siding  and 
extending  entirely  across  end  of  car,  there  shall  be  one  addi- 
tional end-handhold  not  less  than  twenty-four  (24)  inches 
in  length,  located  near  center  of  car,  not  less  than  thirty 
(30)  nor  more  than  sixty  (60)  inches  above  platform  end- 
siU. 

Manner  of  Application  :  Horizontal  end-handholds  shall 
be  securely  fastened  with  not  less  than  one-half  (I/2)  inch 
bolts  with  nuts  outside  (when  possible)  and  riveted  over,  or 
with  not  less  than  one-half  (i/^)  inch  rivets. 


406  APPENDIX 

VERTICAL   END-HANDHOLDS 

Number:  Two  (2)  on  full-width  platform  end-sill  cars, 
as  heretofore  described. 

Dimensions:  Minimum  diameter  five-eighths  (%)  of  an 
inch,  wrought  iron  or  steel. 

Minimum  clear  length,  eighteen  (18),  preferably  twenty 
four  (24),  inches. 

Minimum  clearance  two  (2),  preferably  two  and  one-half 
(214),  inches. 

Location:  One  (1)  on  each  end  of  car  opposite  ladder, 
not  more  than  eight  ( 8 )  inches  from  side  of  car ;  clearance 
of  bottom  end  of  handhold  shall  be  not  less  than  twenty- 
four  (24)  nor  more  than  thirty  (30)  inches  above  center 
line  of  coupler. 

Manner  of  Application:  Vertical  end-handholds  shall 
be  securely  fastened  with  not  less  than  one-half  (%)  inch 
bolts  with  nuts  outside  (when  possible)  and  riveted  over,  or 
with  not  less  than  one  half  (1/2)  inch  rivets. 

uncoupling-levers 

Number:  Two  (2), 

Uncoupling-levers  may  be  either  single  or  double,  and  of 
any  efficient  design. 

Dimensions  :  Handles  of  uncoupling-levers,  except  those 
shown  on  Plate  B  or  of  similar  designs,  shall  be  not  more 
than  six  (6)  inches  from  side  of  car. 

Uncoupling-levers  of  design  shown  on  Plate  B  and  of 
similar  designs  shall  conform  to  the  following-prescribed 
limits : 

Handles  shall  be  not  more  than  twelve  (12),  preferably 
nine  (9),  inches  from  sides  of  cars.  Center  lift-arms  shall 
be  not  less  than  seven  (7)  inches  long. 

Center  of  eye  at  end  of  center  lift-arm  shall  be  not  more 
than  three  and  one-half  (Si/o)  inches  beyond  center  of  eye 
of  uncoupling-pin  or  coupler  when  horn  of  coupler  is 
against  the  buffer-block  or  end-sill.     (See  Plate  B.) 


ORDER  RELATIVE  TO  SAFETY  APPLIANCES       407 

Ends  of  handles  shall  extend  not  less  than  four  (4)  inches 
below  bottom  of  end-sill  or  shgdl  be  so  constructed  as  to  give 
a  minimum  clearance  of  two  (2)  inches  around  handle. 
Minimum  drop  of  handles  shall  be  twelve  (12)  inches;  maxi- 
mum, fifteen  (15)  inches  over  all.     (See  Plate  B.) 

Handles  of  uncoupling-levers  of  the  ' '  rocking  "  or  "  push- 
down" type  shall  be  not  less  than  eighteen  (18)  inches  from 
top  of  rail  when  lock -block  has  released  knuckle,  and  a  suit- 
able stop  shall  be  provided  to  prevent  inside  arm  from 
flying  up  in  case  of  breakage. 

Location:  One  (1)  on  each  end  of  car. 

When  single  lever  is  used  it  shall  be  placed  on  left  side  of 
end  of  car. 

HOPPER  CARS  AND  HIGH-SIDE  GONDOLAS  WITH 
FIXED  ENDS 

[Cars  with  sides  more  than  thirty -six  (36)  i/tiches  above 
the  floor  are  Mgh-side  cars.] 

HAND-BRAKES 

Number:  Same  as  specified  for  "Box  and  other  house 
cars. ' ' 

Dimensions  :  Same  as  specified  for  ' '  Box  and  other  house 
eara. ' ' 

Location:  Each  hand-brake  shall  be  so  located  that  it 
can  be  safely  operated  while  car  is  in  motion. 

The  brake-shaft  shall  be  located  on  end  of  car  to  the  left 
of,  and  not  more  than  twenty-two  (22)  inches  from,  center. 

Manner  of  Application:  Same  as  specified  for  "Box 
and  other  house  cars. ' ' 

brake-step 
Same  as  specified  for  ' '  Box  and  other  house  cars. ' ' 

SILL-STEPS 

Same  as  specified  for  "Box  and  other  house  cars." 


408  APPENDIX 

LADDERS 

Number:  Same  as  specified  for  **Box  and  other  house 
cars, ' ' 

Dimensions  :  Same  as  specified  for  ' '  Box  and  other  house 
cars, ' '  except  that  top  ladder-tread  shall  be  located  not  more 
than  four  (4)  inches  from  top  of  car. 

Location:  Same  as  specified  for  "Box  and  other  house 
cars. ' ' 

Manner  of  Application:  Same  as  specified  for  "Box 
and  other  house  cars. ' ' 

side-handholds 
Same  as  specified  for  "Box  and  other  house  cars." 

horizontal  end-handholds 
Same  as  specified  for  "Box  and  other  house  cars." 

vertical  end-handholds 
Same  as  specified  for  "Box  and  other  house  cars." 

uncoupling-levers 
Same  as  specified  for  "Box  and  other  house  ears." 

end-ladder  clearance 

No  part  of  car  above  end-sills  within  thirty  (30)  inches 
from  side  of  car,  except  buffer-block,  brake-shaft,  brake- 
wheel,  brake-step  or  uncoupling  lever  shall  extend  to  within 
twelve  (12)  inches  of  a  vertical  plane  parallel  with  end  of 
car  and  passing  through  the  inside  face  of  knuckle  when 
closed  with  coupler-horn  against  the  buffer-block  or  end- 
sill,  and  no  other  part  of  end  of  car  or  fixtures  on  same 
above  end-sills,  other  than  exceptions  herein  noted,  shall 
extend  beyond  the  outer 'face  of  buffer-block. 


ORDER  RELATIVE  TO  SAFETY  APPLIANCES       409 

DEOP-END  HIGH-SIDE  GONDOLA  CARS 

HAND-BRAKES 

Number:  Same  as  specified  for  "Box  and  other  house 
cars. ' ' 

Dimensions  :  Same  as  specified  for  ' '  Box  and  other  house 
cars. ' ' 

Location  :  Each  hand-brake  shall  be  so  located  that  it  can 
be  safely  operated  while  car  is  in  motion. 

The  brake-shaft  shall  be  located  on  end  of  car  to  the  left 
of  center.  / 

Manner  op  Application:  Same  as  specified  for  "Box 
and  other  house  cars." 

sill-steps 
Same  as  specified  for  "Box  and  other  house  cars." 

LADDEaiS 

Number:  Two  (2). 

Dimensions  :  Same  as  specified  for  "Box  and  other  house 
cars, ' '  except  that  top  ladder-tread  shall  be  located  not  more 
than  four  (4)  inches  from  top  of  car. 

Location  :  One  (1)  on  each  side,  not  more  than  eight  (8) 
inches  from  right  end  of  car,  measured  from  inside  edge  of 
ladder-stile  or  clearance  of  ladder-treads  to  comer  of  car. 

Manner  of  Application  :  Same  as  specified  for  ' '  Box 
and  other  house  cars." 

side-handholds 
Same  as  specified  for  "Box  and  other  house  cars." 

horizontal  end-handholds 

Number:  Four  (4). 

Dimensions  :  Same  as  specified  for  ' '  Box  and  other  house 
cars." 


410  APPENDIX 

Location:  One  (1)  near  each  side  of  each  end  of  ear  on 
face  of  end-silL  Clearance  of  outer  end  of  handhold  shall 
be  not  more  than  sixteen  (16)  inches  from  side  of  car. 

]\'Iaioter  of  Application:  Same  as  specified  for  "Box 
and  other  house  cars." 

UNCOUPLING-LEVERS 

Same  as  specified  for  ' '  Box  and  other  house  cars. ' ' 

END-LADDER    CLEARANCE 

No  part  of  car  above  end-sills  within  thirty  (30)  inches 
from  side  of  car,  except  buffer-block,  brake-shaft,  brake- 
wheel  or  uncoupling-lever  shall  extend  to  within  twelve 
(12)  inches  of  a  vertical  plane  parallel  with  end  of  car  and 
passing  through  the  inside  face  of  knuckle  when  closed  with 
coupler-horn  against  the  buffer-block  or  end-sill,  and  no 
other  part  of  end  of  car  or  fixtures  on  same  above  end-sills, 
other  than  exceptions  herein  noted,  shall  extend  heyond  the 
outer  face  of  buffer-block. 

FIXEX>-END  LOW-SIDE  GONDOLA  AND  LOW-SIDE 
HOPPER  CARS 

[Cars  ivith  sides  thirty-six  {36)  inches  or  less  above  the 
floor  are  low-side  cars.] 

HA2SrD-BRAKES 

Number:  Same  as  specified  for  "Box  and  other  house 
car3." 

Dimensions  :  Same  as  specified  for  "Box  and  other  house 
cars. ' ' 

Location:  Each  hand-brake  shall  be  so  located  that  it 
can  be  safely  operated  while  car  is  in  motion. 

The  brake-shaft  shall  be  located  on  end  of  car,  to  the  left 
of  and  not  more  than  twenty-two  (22)  inches  from  center. 

Manner  of  Application:  Same  as  specified  for  "Box 
and  other  house  cars. ' ' 


OEDEE  EELATIVB  TO  SAFETY  APPLIANCES       411 
BRAKE-STEP 

Same  as  specified  for  * '  Box  and  other  house  cars. ' ' 

SILLrSTEPS 

Same  as  specified  for  ' '  Box  and  other  house  cars, ' ' 

SIDE-HANDHOLDS 

Number:  Same  as  specified  for  "Box  and  other  house 
cars. ' ' 

Dimensions  :  Same  as  specified  for  ' '  Box  and  other  house 
cars. ' ' 

Location:  Horizontal:  One  (1)  near  each  end  on  each 
side  of  car,  not  less  than  twenty-four  (24)  nor  more  than 
thirty  (30)  inches  ahove  center  line  of  coupler,  if  car  con- 
struction will  permit,  but  handhold  shall  not  project  above 
top  of  side.  Clearance  of  outer  end  of  handhold  shall  be 
not  more  than  eight  (8)  inches  from  end  of  car. 

Manner  of  Application:  Same  as  specified  for  *'Box 
and  other  house  cars." 

horizontal  end-handholds 

Number:  Same  as  specified  for  "Box  and  other  house 
cars. ' ' 

Dimensions  :  Same  as  specified  for  "Box  and  other  house 
ears. ' ' 

Location  :  One  (1)  near  each  side  on  each  end  of  car  not 
less  than  twenty-four  (24)  nor  more  than  thirty  (30)  inches 
above  center  line  of  coupler,  if  car  construction  wiU  permit. 
Clearance  of  outer  end  of  handhold  shall  be  not  more  than 
eight  (8)  inches  from  side  of  car. 

One  (1)  near  each  side  of  each  end  of  car  on  face  of  end- 
sill,  projecting  outward  or  downward.  Clearance  of  outer 
end  of  handhold  shall  be  not  more  than  sixteen  (16)  inches 
from  side  of  car. 

Manner  of  Application:  Same  as  specified  for  "Box 
and  other  house  cars. ' ' 


412  APPENDIX 

UNCOUPLING-LEVERS 

Same  as  specified  for  "Box  and  other  house  cars." 

END-LADDEB   CLEARANCE 

No  part  of  car  above  end-sills  within  thirty  (30)  inches 
from  side  of  car,  except  buffer-block,  brake-shaft,  brake- 
step,  brake-wheel  or  uncoupling-lever  shall  extend  to  within 
twelve  (12)  inches  of  a  vertical  plane  parallel  with  end  of 
car  and  passing  through  the  inside  face  of  knuckle  when 
closed  with  coupler-horn  against  the  buffer-block  or  end- 
sill,  and  no  other  part  of  end  of  car  or  fixtures  on  same 
above  end-sills,  other  than  exceptions  herein  noted,  shall 
extend  beyond  the  cuter  face  of  buffer-block. 

DROP-END  LOW-SIDE  GONDOLA  CARS 

HANDBRAKES 

Number:  Same  as  specified  for  '*Box  and  other  house 
cars." 

Dimensions  :  Same  as  specified  for  ' '  Box  and  other  house 
cars. ' ' 

Location:  Each  hand-brake  shall  be  so  located  that  it 
can  be  safely  operated  while  car  is  in  motion. 

The  brake-shaft  shall  be  located  on  end  of  car  to  the  left 
of  center. 

Manner  of  Application:  Same  as  specified  for  "Box 
and  other  house  cars,"  provided  that  top  brake-shaft  sup- 
port may  be  omitted. 

SILL-STEPS 

Same  as  specified  for  "Box  and  other  house  cars." 

side-handholds 

Number:  Same  as  specified  for  "Box  and  other  house 
cars." 


ORDER  RELATIVE  TO   SAFETY  APPLIANCES  413 

Dimensions  :  Same  as  specified  for  ' '  Box  and  other  house 
cars. ' ' 

Location:  Horizontal:  One  (1)  near  each  end  on  each 
side  of  car,  not  less  than  twenty-four  (24)  nor  more  than 
thirty  (30)  inches  above  center  line  of  coupler,  if  car  con- 
struction will  permit,  but  handhold  shall  not  project  above 
top  of  side.  Clearance  of  outer  end  of  handhold  shall  be  not 
more  than  eight  (8)  inches  from  end  of  car. 

Manner  of  Application:  Same  as  specified  for  "Box 
and  other  house  cars." 

end-handholds 

Number:  Four  (4). 

Dimensions  :  Same  as  specified  for  '  *  Box  and  other  house 
cars. ' ' 

Location:  Horizontal:  One  (1)  near  each  side  of  each 
end  of  car  on  face  of  end-sill.  Clearance  of  outer  end  of 
handhold  shall  be  not  more  than  sixteen  (16)  inches  from 
side  of  car. 

Manner  of  Application:  Same  as  specified  for  "Box 
and  other  house  cars. ' ' 

uncoupling-levers 
Same  as  specified  for  "Box  and  other  house  cars." 

end-ladder  clearance 

No  part  of  car  above  end-sills  within  thirty  (30)  inches 
from  side  of  car,  except  buffer-block,  brake-shaft,  brake- 
wheel,  or  uncoupling-lever  shall  extend  to  within  twelve 
(12)  inches  of  a  vertical  plane  parallel  with  end  of  car  and 
passing  through  the  inside  face  of  knuckle  when  closed  with 
coupler-horn  against  the  buffer-block  or  end-sill,  and  no 
other  part  of  end  of  car  or  fixtures  on  same  above  end-sills, 
other  than  exceptions  herein  noted,  shall  extend  beyond  the 
outer  face  of  buffer-block. 


414  APPENDIX 

FLAT  CARS 

[Cars  with  sides  twelve  (12)  inches  or  less  above  the  floor 
may  he  equipped  the  same  a>s  flat  cars.] 

HAND-BRAKES 

Number:  Same  as  specified  for  "Box  and  other  house 
cars." 

Dimensions  :  Same  as  specified  for  ' '  Box  and  other  house 
cars." 

Location:  Each  hand-brake  shall  be  so  located  that  it 
can  be  safely  operated  while  car  is  in  motion. 

The  brake-shaft  shall  be  located  on  the  end  of  car  to  the 
left  of  center,  or  on  side  of  car  not  more  than  thirty-six 
(36)  inches  from  right-hand  end  thereof. 

Manner  op  Application:  Same  as  specified  for  "Box 
and  other  house  cars. ' ' 

SILI>-STEPS 

Same  as  specified  for  ' '  Box  and  other  house  cars. ' ' 

side-handholds 

Number:  Same  as  specified  for  "Box  and  other  house 
cars." 

Dimensions  :  Same  as  specified  for  ' '  Box  and  other  house 
cars." 

Location  :  Horizontal :  One  ( 1 )  on  face  of  each  side-sill 
near  each  end.  Clearance  of  outer  end  of  handhold  shall  be 
not  more  than  twelve  (12)  inches  from  end  of  car. 

Manner  of  Application:  Same  as  specified  for  "Box 
and  other  house  cars." 

end-handholds 

Number:  Four  (4). 

Dimensions  :  Same  as  specified  for  *  *  Box  and  other  house 
cars. ' ' 


ORDER  RELATIVE  TO  SAFETY  APPLIANCES       415 

Location:  Horizontal:  One  (1)  near  each  side  of  each 
end  of  car  on  face  of  end-sill.  Clearance  of  outer  end  of 
handhold  shall  be  not  more  thaji  sixteen  (16)  inches  from 
side  of  car. 

Manner  of  Application:  Same  as  specified  for  "Box 
and  other  house  cars. ' ' 

UNCOUPLING-LEVERS 

Same  as  specified  for  ' '  Box  and  other  house  cars. ' ' 
TANK-CARS  WITH  SIDE-PLATFORMS 

HAND-BRAKES 

NuMBiai:  Same  as  specified  for  "Box  and  other  house 
cars." 

Dimensions  :  Same  as  specified  for  ' '  Box  and  other  house 
cars." 

Location:  Each  hand-brake  shall  be  so  located  that  it 
can  be  safely  operated  while  car  is  in  motion. 

The  brake-shaft  shaU  be  located  on  end  of  car  to  the  left 
of  center. 

]\Ianner  of  Application:  Same  as  specified  for  "Box 
and  other  house  cars." 

sill-steps 
Same  as  specified  for  ' '  Box  and  other  house  cars. ' ' 

side-handholds 

Number:  Four  (4)  or  more. 

Dimensions  :  Same  as  specified  for  ' '  Box  and  other  house 
cars. ' ' 

Location:  Horizontal:  One  (1)  on  face  of  each  side-sill 
near  each  end.  Clearance  of  outer  end  of  handhold  shall  be 
not  more  than  twelve  (12)  inches  from  end  of  car. 

If  side  safety-railings  are  attached  to  tank  or  tank-bands, 
four  (4)  additional  vertical  handholds  shall  be  applied,  one 


416  APPENDIX 

(1)  as  nearly  as  possible  over  each  sill-step  and  securely 
fastened  to  tank  or  tank-band. 

Manner  of  Application:  Same  as  specified  for  "Box 
and  other  house  cars." 

END-HANDHOLDS 

Number:  Four  (4). 

Dimensions:  Same  as  specified  for  "Box  and  other  house 
cars. ' ' 

Location:  Horizontal:  One  (1)  near  each  side  of  each 
end  of  car  on  face  of  end-sill.  Clearance  of  outer  end  of 
handhold  shall  be  not  more  than  sixteen  (16)  inches  from 
side  of  car. 

Manner  op  Application:  Same  as  specified  for  "Box 
and  other  house  cars. ' ' 

tank-head  handholds 

Number:  Two  (2).  [Not  required  if  safety-railing  runs 
around  ends  of  ta^ik.] 

Dimensions:  Minimum  diameter  five-eighths  (%)  of  an 
inch,  wrought  iron  or  steel.  Minimum  clearance  two  (2), 
preferably  two  and  one-half  (21/2),  inches.  Clear  length  of 
handholds  shall  extend  to  within  six  (6)  inches  of  outer 
diameter  of  tank  at  point  of  application. 

Location:  Horizontal:  One  (1)  across  each  head  of  tank 
not  less  than  thirty  (30)  nor  more  than  sixty  (60)  inches 
above  platform. 

Manner  of  Application:  Tank-head  handholds  shall  be 
securely  fastened. 

safety-railings 

Number:  One  (1)  continuous  safety-railing  running 
around  sides  and  ends  of  tank,  securely  fastened  to  tank  or 
tank-bands  at  ends  and  sides  of  tank;  or  two  (2)  running 
full  length  of  tank  at  sides  of  car  supported  by  posts. 


ORDER  RELATIVE  TO  SAFETY  APPLIANCES       ill 

Dimensions:  Not  less  than  three-fourths  (%)  of  an  inch, 
iron. 

Location  :  Running  full  length  of  tank  either  at  side  sup- 
ported by  posts  or  securely  fastened  to  tank  or  tank-bands, 
not  less  than  thirty  (30)  nor  more  than  sixty  (60)  inches 
above  platform. 

IManner  of  Application:  Safety-railings  shall  be  se- 
curely fastened  to  tank-body,  tank-bands  or  posts. 

uncoupling-levers 
Same  as  specified  for  "Box  and  other  house  cars." 

end-ladder  clearance 

No  part  of  car  above  end-sills  within  thirty  (30)  inches 
from  side  of  car,  except  buifer-bloek,  brake-shaft,  brake- 
shaft  brackets,  brake-wheel  or  uncoupling-lever  shall  extend 
to  "within  twelve  (12)  inches  of  a  vertical  plane  parallel 
with  end  of  car  and  passing  through  the  inside  face  of 
knuckle  when  closed  with  coupler-horn  against  the  buffer- 
block  or  end-sill,  and  no  other  part  of  end  of  car  or  fixtures 
on  same  above  end-sills,  other  than  exceptions  herein  noted, 
shall  extend  beyond  the  outer  face  of  buffer-block. 

TANK    CARS    WITHOUT    SIDE-SILLS    AND    TANK 

CARS  WITH  SHORT   SIDE-SILLS  AND 

END-PLATFORMS 

hand-brakes 

Number:  Same  as  specified  for  "Box  and  other  house 
cars." 

Dimensions  :  Same  as  specified  for  ' '  Box  and  other  house 
cars." 

Location  :  Each  hand-brake  shall  be  so  located  that  it  can 
be  safely  operated  while  car  is  in  motion. 

The  brake-shaft  shaU  be  located  on  end  of  car  to  the  left 

of  center. 

...     ^ ' 

Roberts  Liabilities — 27 


418  APPENDIX 

Manner  of  Application:  Same  as  specified  for  "Box 
and  other  house  cars. ' ' 

RUNNING-BOARDS 

Number:  One  (1)  continuous  running-board  around 
sides  and  ends;  or  two  (2)  running  full  length  of  tank, 
one  (1)  on  each  side. 

DiMKsrsiONS:  Minimum  width  on  sides,  ten  (10)  inches. 

Minimum  width  on  ends,  six  (6)  inches. 

Location:  Continuous  around  sides  and  ends  of  cars. 
On  tank  cars  having  end  platforms  extending  to  bolsters, 
running-boards  shaU  extend  from  center  to  center  of 
bolsters,  one  (1)  on  each  side. 

Manner  of  Application:  If  side  running-boards  are 
applied  below  center  of  tank,  outside  edge  of  running- 
boards  shall  extend  not  less  than  seven  (7)  inches  beyond 
bulge  of  tank. 

The  running-boards  at  ends  of  car  shall  be  not  less  than 
sir  (6)  inches  from  a  point  vertically  above  the  inside  face 
of  knuckle  when  closed  with  coupler-horn  against  the  buffer- 
block,  end-sill  or  back-stop. 

Running-boards  shall  be  securely  fastened  to  tank  or 
tank-bands. 

sill-steps 

Number:  Same  as  specified  for  "Box  and  other  house 
cars." 

Dimensions  :  Same  as  specified  for  ' '  Box  and  other  house 
cars." 

Location:  One  (1)  near  each  end  on  each  side  under 
side-handhold. 

Outside  edge  of  tread  of  step  shall  be  not  more  than 
four  (4)  inches  inside  of  face  of  side  of  car,  preferably 
flush  with  side  of  car. 

Tread  shall  be  not  more  than  twenty-four  (24),  prefera- 
bly not  more  than  twenty-two  (22),  inches  above  the  top 
of  rail. 


ORDER   RELATIVE   TO   SAFETY    APPLIANCES  419 

Manner  of  Application:  Same  as  specified  for  ''Box 
and  other  house  cars. ' ' 

LADDERS 

[//  rmming-hoards  are  so  located  a^  to  make  ladders 
necessary.] 

Number:  Two  (2)  on  cars  with  continuous  running- 
boards. 

Four  (4)  on  cars  with  side  running-boards. 

Dimensions:  Minimum  clear  length  of  tread,  ten  (10) 
inches. 

Maximum  spacing  of  treads,  nineteen  (19)  inches. 

Hard-wood  treads,  minimum  dimensions,  one  and  one- 
half  (11/2)  by  two  (2)  inches. 

"Wrought  iron  or  steel  treads,  minimum  diameter,  five- 
eighths  (%)  of  an  inch. 

IVIinimum  clearance,  two  (2),  preferably  two  and  one-half 
(21/^),  inches. 

Location  :  On  cars  with  continuous  running-boards,  one 
(1)  at  right  end  of  each  side. 

On  cars  with  side  running-boards,  one  (1)  at  each  end  of 
each  running-board. 

Manner  of  Application:  Ladders  shall  be  securely 
fastened  with  not  less  than  one-half  (I/2)  iiich  bolts  or 
rivets. 

side-handholds 

Number:  Four  (4)  or  more. 

Dimensions  :  Same  as  specified  for  ' '  Box  and  other  house 
cars. ' ' 

Location:  Horizontal:  One  (1)  on  face  of  each  side-sill 
near  each  end  on  tank  cars  with  short  side-siQs,  or  one  (1) 
attached  to  top  of  running-board  projecting  outward  above 
sill-steps  or  ladders  on  tank  cars  without  side-siUs.  Clear- 
ance of  outer  end  of  handhold  shall  be  not  more  than  twelve 
(12)  inches  from  end  of  car. 

If  side  safety-railings  are  attached  to  tank  or  tank-bands 
four  (4)  additional  vertical  handholds  shall  be  applied,  one 


420  APPENDIX 

(1)   as  nearly  as  possible  over  each  sill-step  and  securely 
fastened  to  tank  or  tank-band. 

]\Ianner  of  Application:  Same  as  specified  for  "Box 
and  other  house  cars." 

END-HANDHOLDS 

Number:  Four  (4), 

Dimensions :  Same  as  specified  for  "Box  and  other  house 
cars. ' ' 

Location:  Horizontal:  One  (1)  near  each  side  of  eaeli 
end  of  car  on  face  of  end-sill.  Clearance  of  outer  end  of 
handhold  shall  be  not  more  than  sixteen  (16)  inches  from 
side  of  car. 

Manner  of  Application:  Same  as  specified  for  "Box 
and  other  house  cars. ' ' 

tank-head  handholds 

Number:  Two  (2).  [Not  required  if  safety-railing  runs 
around  ends  of  tank.] 

Dimensions:  Minimum  diameter  five-eighths  (%)  of  an 
inch,  wrought  iron  or  steel. 

Minimum  clearance  two  (2),  preferably  two  and  one-half 
(21^),  inches. 

Location:  Horizontal:  One  (1)  across  each  head  of  tank 
not  less  than  thirty  (30)  nor  more  than  sixty  (60)  inches 
above  platform  on  running-board.  Clear  length  of  hand- 
holds shall  extend  to  within  six  (6)  inches  of  outer  diameter 
of  tank  at  point  of  application. 

Manner  of  Application  :  Tank-head  handholds  shall  be 
securely  fastened. 

safety-railings 

Number  :  One  (1)  running  around  sides  and  ends  of  tank 
or  two  (2)  running  full  length  of  tank. 

Dimensions:  Minimmn  diameter,  seven-eighths  (%)  of 
an  inch,  wrought  iron  or  steel. 

Minimum  clearance,  two  and  one-half  (2^^)  inches. 


ORDER   RELATIVB   TO   SAFETY   APPLIANCES  421 

Location:  Running  full  length  of  tank,  not  less  than 
thirty  (30)  nor  more  than  sixty  (60)  inches  above  platform 
or  running-board. 

JManner  of  Application:  Safety-railings  shall  be  se- 
curely fastened  to  tank  or  tank-bands  and  secured  against 
end  shifting. 

UNCOUPLING-LEVERS 

Same  as  specified  for  "Box  and  other  house  cai-s." 

END-LADDER    CLEARANCE 

No  part  of  car  above  end-sills  within  thirty  (30)  inches 
from  side  of  ear,  except  buffer-block,  brake-shaft,  brake- 
shaft  brackets,  brake-wheel,  running-boards  or  uncoupling- 
lever  shall  extend  to  within  twelve  (12)  inches  of  a  vertical 
plane  parallel  with  end  of  car  and  passing  through  the 
inside  face  of  knuckle  when  closed  with  coupler-horn 
against  the  buffer-block  or  end-sill,  and  no  other  part  of 
end  of  car  or  fixtures  on  same,  above  end-sills,  other  than 
exceptions  herein  noted,  shall  extend  beyond  the  outer  face 
of  buffer-block. 

TANK  CARS  WITHOUT  END-SILLS 

HAND-BRAKES 

Number  :  Same  as  specified  for  ' '  Box  and  other  house 
cars. ' ' 

Dimensions  :  Same  as  specified  for  * '  Box  and  other  house 
cars. ' ' 

Location:  Each  hand-brake  shall  be  so  located  that  it 
can  be  safely  operated  while  car  is  in  motion.  The  brake- 
shaft  shall  be  located  on  end  of  car  to  the  left  of  center. 

IVIannee  of  Application:  Same  as  specified  for  "Box 
and  other  house  cars." 

brake-step 

Same  as  specified  for  "Box  and  other  house  ears." 


422  APPENDIX 

EUNNING-BOAEDS 

Number:  One  (1). 

Dimensions:  Minimum  width  on  sides,  ten  (10)  inches. 

Minimum  width  on  ends,  six  (6)  inches. 

Location  :  Continuous  around  sides  and  ends  of  tank. 

Manner  of  Application  :  If  runnning-boards  are  ap- 
plied below  center  of  tank,  outside  edge  of  running-boards 
shall  extend  not  less  than  seven  (7)  inches  beyond  bulge  of 
tank. 

Running-boards  at  ends  of  car  shall  be  not  less  than  six 
(6)  inches  from  a  point  vertically  above  the  inside  face  of 
knuckle  when  closed  with  coupler-horn  against  the  buffer- 
block,  end-sill  or  back-stop. 

Running-boards  shall  be  securely  fastened  to  tank  or 
tank-bands. 

sill-steps 

Number:  Four  (4).  [//  tank  has  high  running-hoards, 
making  ladders  necessary,  sill-steps  must  meet  ladder  re- 
quirements.] 

Dimensions  :  Same  as  specified  for  ' '  Box  and  other  house 
cars." 

Location  :  One  (1)  near  each  end  on  each  side,  flush  with 
outside  edge  of  running-board  as  near  end  of  car  as  prac- 
ticable. 

Tread  not  more  than  twenty-four  (24),  preferably  not 
more  than  twenty-two  (22),  inches  above  the  top  of  rail. 

Majstner  OF  Application  :  Steps  exceeding  eighteen  (18) 
inches  in  depth  shall  have  an  additional  tread  and  be  later- 
ally braced. 

SiU-steps  shall  be  securely  fastened  with  not  less  than 
one-half  (I/2)  inch  bolts  with  nuts  outside  (when  possible) 
and  riveted  over  j  or  with  one-half  (%)  inch  rivets. 

SIDE-HANDHOLiDS 

Number:  Four  (4)  or  more. 


ORDER  RELATIVE  TO  SAFETY  APPLIANCES       423 

Dimensions  :  Same  as  specified  for  ' '  Box  and  other  house 
ears." 

Location  :  Horizontal :  One  ( 1 )  near  each  end  on  each 
side  of  car  over  sill-step,  on  running  board,  not  more  than 
two  (2)  inches  back  from  outside  edge  of  running-board, 
projecting  downward  or  outward. 

Where  such  side-handholds  are  more  than  eighteen  (18) 
inches  from  end  of  car,  an  additional  handhold  must  be 
placed  near  each  end  on  each  side  not  more  than  thirty  (30) 
inches  above  center  line  of  coupler. 

Clearance  of  outer  end  of  handhold  shall  be  not  more 
than  twelve  (12)  inches  from  end  of  car. 

If  safety-railings  are  on  tank,  four  (4)  additional  ver- 
tical handholds  shall  be  applied,  one  (1)  over  each  sill-step 
on  tank. 

Manner  of  Application:  Same  as  specified  for  "Box 
and  other  house  cars. ' ' 

end-handholds 

Number:  Four  (4). 

Dimensions  :  Same  as  specified  for  ' '  Box  and  other  house 
cars. ' ' 

Location:  Horizontal:  One  (1)  near  each  side  on  each 
end  of  car  on  running-board,  not  more  than  two  (2)  inches 
back  from  edge  of  running-board  projecting  downward  or 
outward,  or  on  end  of  tank  not  more  than  thirty  (30)  inches 
above  center  line  of  coupler. 

Manner  op  Application:  Same  as  specified  for  "Box 
and  other  house  cars. ' ' 

safety-railings 

Number:  One  (1). 

Dimensions:  Minimum  diameter  seven-eighths  (%)  of 
an  inch,  wrought  iron  or  steel. 

Minimum  clearance  two  and  one-half  (21/2)  inches. 
Location:  Safety-railings   shall   be   continuous  around 


424  APPENDIX 

sides  and  ends  of  ear,  not  less  than  thirty  (30)  nor  more 
than  sixty  (60),  inches  above  running-boaj:'d. 

IManner  op  Application:  Safety-railings  shall  be  se- 
curely fastened  to  tank  or  tank-bands,  and  secured  against 
end  shifting, 

UNCOUPLING-LEVERS 

Number:  Same  as  specified  for  "Box  and  other  house 
cars. ' ' 

Dimensions  :  Same  as  specified  for  "Box  and  other  house 
cars,"  except  that  minimum  length  of  uncoupling-lever 
shall  be  forty-two  (42)  inches,  measured  from  center  line 
of  end  of  car  to  handle  of  lever. 

Location:  Same  as  specified  for  "Box  and  other  house 
cars,"  except  that  uncoupling-lever  shall  be  not  more  than 
thirty  (30)  inches  above  center  line  of  coupler. 

END-LADDKl    CLEARANCE 

No  part  of  car  above  buffer-block  within  thirty  (30) 
inches  from  side  of  car,  except  brake-shaft,  brake-shaft 
brackets,  brake-wheel  or  uncoupling-lever  shall  extend  to 
within  twelve  (12)  inches  of  a  vertical  plane  parallel  with 
end  of  car  and  passing  through  the  inside  face  of  knuclde 
when  closed  with  coupler-horn  against  the  buffer-block  or 
back-stop,  and  no  other  part  of  end  of  car  or  fixtures  on 
same,  above  buffer-block,  other  than  exceptions  herein  noted, 
shall  extend  beyond  the  face  of  buffer-block. 

CABOOSE  CARS  WITH  PLATFORMS 

HAND-BRAKES 

Number  :  Each  caboose  car  shall  be  equipped  with  an  effi- 
cient hand-brake  which  shall  operate  in  harmony  with  the 
power-brake  thereon. 

The  hand-brake  may  be  of  any  efficient  design,  but  must 
provide  the  same  degree  of  safety  as  the  design  shown  on 
Plate  A. 


ORDER  RELATIVE  TO  SAFETY  APPLIANCES       425 

Dimensions:  Same  as  specified  for  "Box  and  other  house 
cars." 

Location:  Each  hand-brake  shall  be  so  located  that  it 
can  be  safely  operated  while  car  is  in  motion. 

The  brake-shaft  on  caboose  cars  with  platforms  shall  be 
located  on  platform  to  the  left  of  center. 

Manner  of  Application  :  Same  as  specified  for  ' '  Box 
and  other  house  cars. ' ' 

running-boards 

Number:  One  (1)   longitudinal  running-board. 

Dimensions  :  Same  as  specified  for  ' '  Box  and  other  house 
ears. ' ' 

Location:  Full  length  of  car,  center  of  roof.  [On  ca- 
boose cars  with  cupolas,  longitudinal  running-hoards  shall 
extend  from  cupola  to  ends  of  roof.] 

Outside-metal-roof  cars  shall  have  latitudinal  extensions 
leading  to  ladder  locations. 

Manner  of  Application:  Same  as  specified  for  "Box 
and  other  house  cars." 

LADDERS 

Number:  Two  (2). 
Dimensions:  None  specified. 
Location:  One  (1)  on  each  end. 

Manner  of  Application:  Same  as  specified  for  "Box 
and  other  house  cars." 

roof-handholds 

Number:  One  (1)  over  each  ladder. 

Where  stiles  of  ladders  extend  twelve  (12)  inches  or  more 
above  roof,  no  other  roof -handholds  are  required. 

Dimensions:  Same  as  specified  for  "Box  and  other  house 
ears." 

Location  :  On  roof  of  caboose,  in  line  with  and  running 
parallel  to  treads  of  ladder,  not  less  than  eight  (8)  nor  more 
than  fifteen  (15)  inches  from  edge  of  roof. 


426  APPENDIX 

Manner  of  Application:  Same  as  specified  for  **Box 
and  other  house  cars. ' ' 

cupola-handholds 

Number:  One  (1)  or  more. 

Dimensions:  Minimum  diameter,  five-eighths  (%)  of  an 
inch,  wrought  iron  or  steel. 

Minimum  clearance  two  (2),  preferably  two  and  one-half 
(214),  inches. 

Location:  One  (1)  continuous  handhold  extending 
around  top  of  cupola  not  more  than  three  (3)  inches  from 
edge  of  cupola-roof. 

Four  (4)  right-angle  handholds,  one  (1)  at  each  comer, 
not  less  than  sixteen  (16)  inches  in  clear  length  from  point 
of  angle,  may  take  the  place  of  the  one  ( 1 )  continuous  hand- 
hold specified,  if  locations  coincide. 

Manner  of  Application  :  Cupola-handholds  shall  be  se- 
curely fastened  with  not  less  than  one-half  (^)  inch  bolts 
with  nuts  outside  and  riveted  over  or  with  not  less  than  one- 
half  (1/^)  inch  rivets. 

side-handholds 

Number:  Four  (4). 

Dimensions:  Minimum  diameter,  five-eighths  (%)  of  an 
inch,  wrought  iron  or  steel. 

Minimum  clear  length,  thirty -six  (36)  inches. 

Minimum  clearance,  two  (2),  preferably  two  and  one-half 
(21/^),  inches. 

Location:  One  (1)  near  each  end  on  each  side  of  car, 
curving  downward  toward  center  of  car  from  a  point  not 
less  than  thirty  (30)  inches  above  platform  to  a  point  not 
more  than  eight  (8)  inches  from  bottom  of  car.  Top  end  of 
handhold  shall  be  not  more  than  eight  (8)  inches  from 
outside  face  of  end-sheathing. 

Manner  of  Application:  Same  as  specified  for  "Box 
and  other  house  cars. ' ' 


ORDER  RELATT/B  TO   SAFETY   APPLIANCES  427 

END-HANDHOLDS 

Number:  Four  (4). 

Dimensions  :  Same  as  specified  for  ' '  Box  and  other  house 
ears. ' ' 

Location:  Horizontal:  One  (1)  near  each  side  on  each 
end  of  car  on  face  of  platform  end-sill.  Clearance  of  outer 
end  of  handhold  shall  be  not  more  than  sixteen  (16)  inches 
from  end  of  platform  end-sill. 

Manner  of  Application:  Same  as  specified  for  "Box 
and  other  house  cars." 

end-platform  handholds 

Number:  Four  (4). 

Dimensions:  Minimum  diameter,  five-eighths  (%)  of  an 
inch,  wrought  iron  or  steel. 

Minimum  clearance,  two  (2),  preferably  two  and  one-half 
(2i/o),  inches. 

Location  :  One  ( 1 )  right-angle  handhold  on  each  side  of 
each  end  extending  horizontally  from  door-post  to  corner  of 
car  at  approximate  height  of  platform-raU,  then  downward 
to  within  twelve  (12)  inches  of  bottom  of  car. 

Manner  of  Application  :  Handholds  shall  be  securely 
fastened  with  bolts,  screws  or  rivets. 

caboose  platform-steps 

Safe  and  suitable  box  steps  leading  to  caboose  platforms 
shall  be  provided  at  each  corner  of  caboose. 

Lower  tread  of  step  shall  be  not  more  than  twenty-four 
(24)  inches  above  top  of  rail. 

uncoupling-levers 
Same  as  specified  for  ''Box  and  other  house  cars." 


428  APPENDIX 

CABOOSE  CARS  WITHOUT  PLATFORMS 

HAND-BRAKES 

Number:  Same  as  specified  for  ''Box  and  other  house 
cars. ' ' 

Dimensions  :  Same  as  specified  for  ' '  Box  and  other  house 
cars. ' ' 

Location  :  Each  hand-brake  shall  be  so  located  that  it 
can  be  safely  operated  while  car  is  in  motion. 

The  brake-shaft  on  caboose  cars  without  platforms  shall 
be  located  on  end  of  car  to  the  left  of  center. 

Manner  of  Application:  Same  as  specified  for  "Box 
and  other  house  cars. ' ' 

BRAKE-STEP 

Same  as  sjDecified  for  "Box  and  other  house  ears." 

running-boards 

Number:  Same  as  specified  for  "Box  and  other  house 
cars. ' ' 

Dimensions  :  Same  as  specified  for  * '  Box  and  other  house 
cars. ' ' 

Location  :  Full  length  of  car,  center  of  roof.  [On  ca- 
boose cars  with  cupolas,  longitudinal  running-hoards  shall 
extend  from  cupola  to  ends  of  roof.] 

Outside-metal-roof  cars  shall  have  latitudinal  extensions 
leading  to  ladder  locations. 

Manner  op  Application:  Same  as  specified  for  "Box 
and  other  house  cars. ' ' 

sill-steps 
Same  as  specified  for  ' '  Box  and  other  house  ears. ' ' 

side-door  steps 

Number:  Two  (2)   [if  caboose  has  side-doors]. 
Dimensions:  Minimum  length,  five  (5)  feet. 


ORDER  RELATIVE  TO  SAFETY  APPLIANCES       429 

Minimum  width,  six  (6)  inches. 

Minimum  thickness  of  tread,  one  and  one-half  (lYz) 
inches. 

Minimum  height  of  back-stop,  three  (3)  inches. 

IMinimum  height  from  top  of  rail  to  top  of  tread,  twenty- 
four  (24)  inches. 

Location:  One  (1)  under  each  side-door. 

Manner  of  Application:  Side-door  steps  shall  be  sup- 
ported by  two  (2)  iron  brackets  having  a  minimum  cross- 
sectional  area  seven-eighths  {%)  by  three  (3)  inches  or 
equivalent,  each  of  which  shall  be  securely  fastened  to  car 
by  not  less  than  two  (2)  three-fourth  (%)  inch  bolts. 

LADDERS 

Number:  Four  (4). 

Dimensions  :  Same  as  specified  for  '  *  Box  and  other  house 
cars. ' ' 

Location:  Same  as  specified  for  "Box  and  other  house 
cars, ' '  except  when  caboose  has  side-doors,  then  side-ladders 
shall  be  located  not  more  than  eight  (8)  inches  from  doors. 

Manner  of  Application:  Same  as  specified  for  "Box 
and  other  house  cars." 

end-ladder  clearance 

No  part  of  car  above  end-sills  within  thirty  (30)  inches 
from  side  of  car,  except  buffer-block,  brake-shaft,  brake- 
wheel,  brake-step,  running-board  or  uncoupling-lever  shall 
extend  to  within  twelve  (12)  inches  of  a  vertical  plane 
parallel  with  end  of  car  and  passing  through  the  inside 
face  of  knuckle  when  closed  with  coupler-horn  against  the 
buffer-block  or  end-sill,  and  no  other  part  of  end  of  car 
or  fixtures  on  same  above  end-sills,  other  than  exceptions 
herein  noted,  shall  extend  beyond  the  outer  face  of  buffer- 
block. 

roof-handholds 
Number:  Four  (4).     . 


430  APPENDIX 

Dimensions  :  Same  as  specified  for  * '  Box  and  other  house 
ears. ' ' 

Location  :  One  (1)  over  each  ladder,  on  roof  in  line  with 
and  running  parallel  to  treads  of  ladder,  not  less  than  eight 
(8)  nor  more  than  fifteen  (15)  inches  from  edge  of  roof. 

"Where  stiles  of  ladders  extend  twelve  (12)  inches  or  more 
above  roof,  no  other  roof-handholds  are  required. 

Manner  of  Appljcation:  Roof -handholds  shall  be  se- 
curely fastened  with  not  less  than  one-half  (Vo)  inch  bolts 
with  nuts  outside  (when  possible)  and  riveted  over,  or  with 
not  less  than  one-half  (i^)  inch  rivets. 

cupola-handholds 

Number:  One  (1)  or  more. 

Dimensions:  Minimum  diameter,  five-eighths  (%)  of  an 
inch,  wrought  iron  or  steel. 

Minimum  clearance,  two  (2),  preferably  two  and  one- 
half  (214),  inches. 

Location:  One  (1)  continuous  cupola-handhold  extend- 
ing around  top  of  cupola,  not  more  than  three  (3)  inches 
from  edge  of  cupola  roof. 

Four  (4)  right-angle  handholds,  one  (1)  at  each  corner, 
not  less  than  sixteen  (16)  inches  in  clear  length  from  point 
of  angle,  may  take  the  place  of  the  one  (1)  continuous  hand- 
hold specified,  if  locations  coincide. 

Manner  of  Application:  Cupola-handhold  shall  be  se- 
curely fastened  with  not  less  than  one-half  (Yo)  inch  bolts 
with  nuts  outside  and  riveted  over  or  with  not  less  than 
one-half  (^)  inch  rivets. 

side-handholds 

Number:  Four  (4). 

Dimensions  :  Same  as  specified  for  ' '  Box  and  other  house 
cars. ' ' 

Location:  Horizontal:  One  (1)  near  each  end  on  each 
side  of  car,  not  less  than  twenty-four  (24)  nor  more  than 
thirty  (30)  inches  above  center  line  of  coupler.    Clearance 


ORDER  RELATIVE  TO  SAFETY  APPLIANCES       431 

of  outer  end  of  handhold  shall  be  not  more  than  eight  (8) 
inches  from  end  of  car. 

Manner  op  Application:  Same  as  specified  for  ''Box 
and  other  house  cars." 

SIDE-DOOR    HANDHOLDS 

Number:  Four  (4)  :   Two  (2)  curved,  two  (2)  straight. 

Dimensions:  Minimum  diameter,  five-eighths  (%)  of  an 
inch,  wrought  iron  or  steel. 

Minimum  clearance  two  (2),  preferably  two  and  one-half 
(21/2),  inches. 

Location  :  One  ( 1 )  curved  handhold,  from  a  point  at  side 
of  each  door  opposite  ladder,  not  less  than  thirty -six  (36) 
inches  above  bottom  of  car,  curving  away  from  door  down- 
ward to  a  point  not  more  than  six  (6)  inches  above  bottom 
of  car. 

One  (1)  vertical  handhold  at  ladder  side  of  each  door 
from  a  point  not  less  than  thirty-six  (36)  inches  above  bot- 
tom of  car  to  a  point  not  more  than  six  (6)  inches  above 
level  of  bottom  of  door. 

Manner  op  Application  :  Side-door  handholds  shall  be 
securely  fastened  with  not  less  than  one-half  ( I/2 )  inch  bolts 
with  nuts  outside  (when  possible)  and  riveted  over,  or  with 
not  less  than  one-half  (1/2)  inch  rivets. 

horizontal   END-HANDHOLDS 

Number:  Same  as  specified  for  "Box  and  other  house 
cars. ' ' 

Dimensions  :  Same  as  specified  for  ' '  Box  and  other  house 
cars. ' ' 

Location:  Same  as  specified  for  "Box  and  other  house 
cars,"  except  that  one  (1)  additional  end-handhold  shall  be 
on  each  end  of  cars  with  platform  end-sills  as  heretofore 
described,  unless  car  has  door  in  center  of  end.  Said  hand- 
hold shaU  be  not  less  than  twenty-four  (24)  inches  in 
length,  located  near  center  of  car,  not  less  than  thirty  (30) 
nor  more  than  sixty  (60)  inches  above  platform  end-sill. 


432  APPENDIX 

Manner  of  Application:  Same  as  specified  for  "Box 
and  other  house  cars." 

VERTICAL   END-HANDHOLDS 

Same  as  specified  for  ' '  Box  and  other  house  cars. ' ' 

UNCOUPLING-LEVERS 

Same  as  specified  for  ''Box  and  other  house  cars." 

PASSENaER-TRAIN,  CARS    WITH    WIDE    VESTI- 
BULES 

HAND-BRAKES 

Number:  Each  passenger-train  car  shaU  be  equipped 
with  an  efficient  hand-brake,  which  shall  operate  in  har- 
mony with  the  power-brake  thereon. 

Location  :  Each  hand-brake  shall  be  so  located  that  it 
can  be  safely  operated  while  car  is  in  motion. 

SIDE-HANDHOLDS 

Number:  Eight  (8). 

Dimensions:  Minimum  diameter,  five-eighths  (%)  of  an 
inch,  metal. 

Minimum  clear  length,  sixteen  (16)  inches. 

Minimum  clearance,  one  and  one-fourth  (1^),  preferably 
one  and  one-half  (1%),  inches. 

Location:  Vertical:  One  (1)  on  each  vestibule  door-post. 

Manner  of  Application:  Side-handholds  shall  be  se- 
curely fastened  with  bolts,  rivets  or  screws. 

END-HANDHOLDS 

Number:  Four  (4). 

Dimensions:  Minimum  diameter,  five-eighths  (%)  of  an 
inch,  wrought  iron  or  steel. 

IVIinimum  clear  length,  sixteen  (16)  inches. 


ORDER  RELATIVE  TO  SAFETY  APPLIANCES       433 

Minimum  clearance,  two  (2),  preferably  two  and  one-half 
(2V2),  inches. 

Handholds  shall  be  flush  with  or  project  not  more  than 
one  (1)  inch  beyond  vestibule  face. 

Location:  Horizontal:  One  (1)  near  each  side  on  each 
end  projecting  downward  from  face  of  vestibule  end-sill. 
Clearance  of  outer  end  of  handhold  shall  be  not  more  than 
sixteen  (16)  inches  from  side  of  car. 

Manner  of  Application:  End-handholds  shall  be  se- 
curely fastened  with  bolts  or  rivets. 

When  marker-sockets  or  brackets  are  located  so  that  they 
cannot  be  conveniently  reached  from  platforms,  suitable 
steps  and  handholds  shall  be  provided  for  men  to  reach  such 
sockets  or  brackets. 

UNCOUPLING-LEVERS 

Uncoupling  attachments  shall  be  applied  so  they  can  be 
operated  by  a  person  standing  on  the  ground. 

Minimum  length  of  ground  uncoupling  attachment, 
forty- two  (42)  inches,  measured  from  center  line  of  end  of 
car  to  handle  of  attachment. 

On  passenger-train  cars  used  in  freight  or  mixed-train 
service,  the  uncoupling  attachments  shall  be  so  applied 
that  the  coupler  can  be  operated  from  left  side  of  car. 

PASSENGER-TRAIN  CARS  WITH  OPEN  END- 
PLATFORMS 

HAND-BRAKES 

Number:  Each  passenger-train  car  shall  be  equipped 
with  an  efficient  hand-brake,  which  shall  operate  in  har- 
mony with  the  power-brake  thereon. 

Location:  Each  hand-brake  shaU  be  so  located  that  it 
can  be  safely  operated  while  car  is  in  motion, 

Roberts  LlabillUes— 2  8 


434  APPENDIX 

END-HANDHOLDS 

Number:  Four  (4). 

Dimensions:  Minimum  diameter,  five-eighths  (%)  of  an 
inch,  wrought  iron  or  steel. 

Minimum  clear  length,  sixteen  (16)  inches. 

Minimum  clearance,  two  (2),  preferably  two  and  one-half 
(21/2),  inches. 

Handholds  shall  be  flush  with  or  project  not  more  than 
one  (1)  inch  beyond  face  of  end-sill. 

Location:  Horizontal:  One  (1)  near  each  side  of  each 
end  on  face  of  platform  end-sill,  projecting  downward. 
Clearance  of  outer  end  of  handhold  shall  be  not  more  than 
sixteen  (16)  inches  from  end  of  end-sill. 

Manner  of  Application:  End-handholds  shall  be  se- 
curely fastened  with  bolts  or  rivets. 

end  platform-handholes 

Number  :  Four  (4) .  [Cars  equipped  with  safety-gates  do 
not  require  end  platform-Jw/iidholds.] 

Dimensions:  Minimum  clearance  two  (2),  preferably 
two  and  one-half  (21/2),  inches  metal. 

Location  :  Horizontal  from  or  near  door-post  to  a  point 
not  more  than  twelve  (12)  inches  from  corner  of  car,  then 
approximately  vertical  to  a  point  not  more  than  six  (6) 
inches  from  top  of  platform.  Horizontal  portion  shall  be 
not  less  than  twenty-four  (24)  inches  in  length  nor  more 
than  forty  (40)  inches  above  platform. 

Manner  of  Application  :  End  platform-handholds  shall 
be  securely  fastened  with  bolts,  rivets  or  screws. 

xjncoupling-levers 

Uncoupling  attachments  shall  be  applied  so  they  can  be 
operated  by  a  person  standing  on  the  ground. 

Minimum  length  of  ground  uncoupling-attachment, 
forty-tAvo  (42)  inches,  measured  from  center  of  end  of  car 
to  handle  of  attachment. 


ORDER  RELATIVE  TO  SAFETY  APPLIANCES       435 

On  passenger-train  cars  used  in  freight  or  mixed-train 
service  the  uncoupling  attachments  shall  be  so  applied  that 
the  coupler  can  be  operated  from  left  side  of  car. 

PASSENGER-TRAIN  CARS  WITHOUT  END- 
PLATFORMS 

HAND  BRAKES 

Number:  Each  passenger-train  car  shall  be  equipped 
with  an  efficient  hand-brake  which  shall  operate  in  har- 
mony with  the  power-brake  thereon. 

Location:  Each  hand-brake  shall  be  so  located  that  it 
can  be  safely  operated  while  car  is  in  motion. 

SILL-STEPS 

Number:  Four  (4). 

Dimensions:  Minimum  length  of  tread  ten  (10),  prefer- 
ably twelve   (12),  inches. 

Minimum  cross-sectional  area  one-half  (i/^)  by  one  and 
one-half  (II/2)  inches  or  equivalent,  wrought  iron  or  steel. 

Minimum  clear  depth  eight  (8)  inches. 

Location:  One  (1)  near  each  end  on  each  side  not  more 
than  twenty-four  (24)  inches  from  corner  of  car  to  center 
of  tread  of  sill-step. 

Outside  edge  of  tread  of  step  shall  be  not  more  than  two 
(2)  inches  inside  of  face  of  side  of  car. 

Tread  shall  be  not  more  than  twenty-four  (24),  prefer- 
ably not  more  than  twenty-two  (22),  inches  above  the  top 
of  rail. 

Manner  op  Application:  Steps  exceeding  eighteen  (18) 
inches  in  depth  shall  have  an  additional  tread  and  be  later- 
ally braced. 

Sill-steps  shall  be  securely  fastened  with  not  less  than 
one-half  (Yo)  inch  bolts  with  nuts  outside  (when  possible) 
and  riveted  over,  or  with  not  less  than  one-half  (i/^)  inch 
rivets. 


436  APPENDIX 

SIDE-HANDHOLDS 

Number:  Four  (4). 

DiMEasrsiONS :  Minimum  diameter,  five-eighths  (%)  of  an 
inch,  wrought  iron  or  steel. 

Minimum  clear  length,  sixteen  (16),  preferably  twenty- 
four  (24),  inches. 

Minimum  clearance,  two  (2),  preferably  two  and  one-half 
(21/2),  inches. 

Location:  Horizontal  or  vertical:  One  (1)  near  each 
end  on  each  side  of  car  over  sill-step. 

If  horizontal,  not  less  than  twenty-four  (24)  nor  more 
than  thirty  (30)  inches  above  center  line  of  coupler. 

If  vertical,  lower  end  not  less  than  eighteen  (18)  nor 
more  than  twenty- four  (24)  inches  above  center  line  of 
coupler, 

iV'LiNNER  OF  Application:  Side-handholds  shall  be  se- 
curely fastened  with  bolts,  rivets  or  screws. 

END-HANDHOLDS 

Number:  Four  (4). 

Dimensions:  Minimum  diameter,  five-eighths  (%)  of  an 
inch,  wrought  iron  or  steel. 

Minimum  clear  length,  sixteen  (16)  inches. 

Minimum  clearance,  two  (2),  preferably  two  and  one-half 
(21/2),  inches. 

Location:  Horizontal:  One  (1)  near  each  side  on  each 
end  projecting  doAvnward  from  face  of  end-sill  or  sheathing. 
Clearance  of  outer  end  of  handhold  shall  be  not  more  than 
sixteen  (16)  inches  from  side  of  car. 

Manner  op  Application  :  Handholds  shall  be  flush  with 
or  project  not  more  than  one  (1)  inch  beyond  face  of  end- 
sill. 

End-handholds  shall  be  securely  fastened  with  bolts  or 
rivets. 

When  marker  sockets  or  brackets  are  located  so  that  they 
camiot  be  convenient!}^  reached  from  platforms,  suitable 


ORDER  RELATIVE  TO  SAFETY  APPLIANCES       437 

steps  and  handholds  shall  be  provided  for  men  to  reach  such 
sockets  or  brackets. 

END-HANDRAILS 

[On  cars  with  projecting  end'SiUs.] 

Number:  Four  (4). 

Dimensions:  Minimum  diameter,  five-eighths  (%)  of  an 
inch,  wrought  iron  or  steel. 

Minimum  clearance,  two  (2),  preferably  two  and  one-half 
(21/2),  inches. 

Location:  One  (1)  on  each  side  of  each  end,  extending 
horizontally  from  door-post  or  vestibule-frame  to  a  point 
not  more  than  six  (6)  inches  from  corner  of  car,  then 
approximately  vertical  to  a  point  not  more  than  six  (6) 
inches  from  top  of  platform  end-sill ;  horizontal  portion 
shall  be  not  less  than  thirty  (30)  nor  more  than  sixty  (60) 
inches  above  platform  end-sill. 

Manner  of  Application:  End-handrails  shall  be  se- 
curely fastened  with  bolts,  rivets  or  screws, 

side-door  steps 

Number:  One  (1)  under  each  door. 

Dimensions:  Minimum  length  of  tread,  ten  (10),  prefer- 
ably twelve  (12),  inches. 

Minimum  cross-sectional  area,  one-half  (i/o)  by  one  and 
one-half  (1^^)  inches  or  equivalent,  wrought  iron  or  steel. 

Minimum  clear  depth,  eight  (8)  inches. 

Location:  Outside  edge  of  tread  of  step  not  more  than 
two  (2)  inches  inside  of  face  of  side  of  car. 

Tread  not  more  than  twenty-four  (24),  preferably  not 
more  than  twenty-two  (22),  inches  above  the  top  of  rail. 

Manner  of  Application:  Steps  exceeding  eighteen  (18) 
inches  in  depth  shall  have  an  additional  tread  and  be  later- 
ally braced. 

Side-door  steps  shall  be  securely  fastened  with  not  less 
than  one-half    (i/^)    inch  bolts  with  nuts  outside    (when 


438  APPENDIX 

possible)  and  riveted  over,  or  with  not  less  than  one-half 
(1/^)  inch  rivets. 

A  vertical  handhold  not  less  than  twenty-four  (24)  inches 
in  clear  length  shall  be  applied  above  each  side-door  step  on 
door-post. 

UNCOUPLING-LEVERS 

Uncoupling  attachments  shall  be  applied  so  they  can  be 
operated  by  a  person  standing  on  the  ground. 

Minimum  length  of  ground  uncoupling  attachment, 
forty-two  (42)  inches,  measured  from  center  line  of  end  of 
car  to  handle  of  attachment. 

On  passenger-train  cars  used  in  freight  or  mixed-train 
service,  the  uncoupling  attachment  shall  be  so  applied  that 
the  coupler  can  be  operated  from  the  left  side  of  car. 

STEAM  LOCOMOTIVES  USED  IN  ROAD  SERVICE 

TENDER    SILL-STEPS 

Number:  Four  (4)  on  tender. 

Dimensions:  Bottom  tread  not  less  than  eight  (8)  by 
twelve  (12)  inches,  metal. 

[May  have  wooden  treads.] 

If  stirrup-steps  are  used,  clear  length  of  tread  shall  be 
not  less  than  ten  (10),  preferably  twelve  (12),  inches. 

Location:  One  (1)  near  each  corner  of  tender  on  sides. 

Manner  op  Application  :  Tender  sill-steps  shall  be  se- 
curely fastened  with  bolts  or  rivets. 

pilot  sill-steps  • 

Number:  Two  (2). 

Dimensions:  Tread  not  less  than  eight  (8)  inches  in 
width  by  ten  (10)  inches  in  length,  metal. 

[May  have  wooden  treads.] 

Location:  One  (1)  on  or  near  each  end  of  buffer-beam 
outside  of  rail  and  not  more  than  sixteen  (16)  inches  above 
rail. 


ORDER   RELATIVE   TO   SAFETY  APPLIANCES  439 

Manner  of  Application:  Pilot  sill-steps  shall  be  se- 
curely fastened  with  bolts  or  rivets. 

pilot-beam  handholds 

Number:  Two  (2). 

Dimensions:  Minimum  diameter,  five-eighths  (%)  of  an 
inch,  wrought  iron  or  steel. 

Minimum  clear  length,  fourteen  (14),  preferably  sixteen 
(16),  inches. 

Minimum  clearance,  two  and  one-half  (2i/^)  inches. 

Location:  One  (1)  on  each  end  of  buffer-beam. 

[If  uncoupling -lever  extends  across  front  end  of  locomo- 
tive to  within  eight  (8)  inches  of  end  of  huffer-heam,  and  is 
seven-eighths  (%)  o/  an  inch  or  more  in  diameter,  securely 
fastened,  with  a  clearance  of  twv  and  mie-half  (2^/^)  inches, 
it  is  a  handiwld.] 

Manner  of  Application  :  Pilot-beam  handholds  shall  be 
securely  fastened  with  bolts  or  rivets. 

side-handholds 

Number:  Six  (6). 

Dimensions:  Minimum  diameter,  if  horizontal,  five- 
eighths  (%)  of  an  inch;  if  vertical,  seven-eighths  (%)  of 
an  inch,  wrought  iron  or  steel. 

Horizontal,  minimum  clear  length,  sixteen  (16)  inches. 

Vertical,  clear  length  equal  to  approximate  height  of  tank. 

Minimum  clearance  two  (2),  preferably  two  and  one-half 
(21/^),  inches. 

Location:  Horizontal  or  vertical:  If  vertical,  one  (1)  on 
each  side  of  tender  within  six  (6)  inches  of  rear  or  on 
corner,  if  horizontal,  same  as  specified  for  "Box  and  other 
house  cars." 

One  (1)  on  each  side  of  tender  near  gangway;  one  (1) 
on  each  side  of  locomotive  at  gangway ;  applied  vertically. 

Manner  of  Application  :  Side-handholds  shall  be  secure- 
ly fastened  with  not  less  than  one-half  (%)  inch  bolts  or 
rivets. 


440  appendix 

reae-end  handholds 

Number:  Two  (2). 

Dimensions:  Minimum  diameter,  five-eighths  (%)  of  an 
inch,  wrought  iron  or  steel. 

Minimum  clear  length,  fourteen  (14)  inches. 

Minimum  clearance  two  (2),  preferably  two  and  one-half 
(2I/2),  inches. 

Location:  Horizontal:  One  (1)  near  each  side  of  rear 
end  of  tender  on  face  of  end-sill.  Clearance  of  outer  end 
of  handhold  shall  be  not  more  than  sixteen  (16)  inches 
from  side  of  tender. 

Manner  of  Application:  Rear-end  handholds  shall  be 
securely  fastened  with  not  less  than  one-half  (1/2)  inch 
bolts  or  rivets. 

uncoupling-levers 

Number:  Two  (2)  double  levers,  operative  from  either 
side. 

Dimensions:  Rear-end  levers  shall  extend  across  end  of 
tender  with  handles  not  more  than  twelve  (12),  preferably 
nine  (9),  inches  from  side  of  tender  with  a  guard  bent  on 
handle  to  give  not  less  than  two  (2)  inches  clearance 
around  handle. 

Location  :  One  (1)  on  rear  end  of  tender  and  one  (1)  on 
front  end  of  locomotive. 

Handles  of  front-end  levers  shall  be  not  more  than  twelve 
(12),  preferably  nine  (9),  inches  from  ends  of  buffer-beam, 
and  shall  be  no  constructed  as  to  give  a  minimum  clearance 
of  two  (2)  inches  around  handle. 

jNIanner  of  Application  :  Uncoupling-levers  shall  be  se- 
curely fastened  with  bolts  or  rivets. 

couplers 

Locomotives  shall  be  equipped  with  automatic  couplers 
at  rear  of  tender  and  front  of  locomotive. 


ORDER  RELATIVE  TO  SAFETY  APPLIANCES       441 

STEAM  LOCOMOTIVES  USED  IN  SWITCHING 
SERVICE 

FOOTBOARDS 

Number:  Two  (2)  or  more. 

Dimensions:  Minimum  width  of  tread,  ten  (10)  inches, 
wood. 

Minimum  tliickness  of  tread,  one  and  one-half  (1%), 
preferably  two  (2),  inches. 

Minimum  height  of  back-stop,  four  (4)  inches  above 
tread. 

Height  from  top  of  rail  to  top  of  tread,  not  more  than 
twelve  (12)  nor  less  than  nine  (9)  inches. 

Location:  Ends  or  sides. 

If  on  ends,  they  shall  extend  not  less  than  eighteen  (18) 
inches  outside  of  gauge  of  straight  track,  and  shall  be  not 
more  than  twelve  (12)  inches  shorter  than  buffer-beam  at 
each  end. 

Manner  of  Application:  End  footboards  may  be  con- 
structed in  two  (2)  sections,  provided  that  practically  all 
space  on  each  side  of  coupler  is  filled ;  each  section  shall  be 
not  less  than  three  (3)  feet  in  length. 

Footboards  shall  be  secui'ely  bolted  to  two  (2)  one  (1)  by 
four  (4)  inches  metal  brackets,  provided  footboard  is  not 
cut  or  notched  at  any  point. 

If  footboard  is  cut  or  notched  or  in  two  (2)  sections,  not 
less  than  four  (4)  one  (1)  by  three  (3)  inches  metal  brackets 
shall  be  used,  two  (2)  located  on  each  side  of  coupler.  Each 
bracket  shall  be  securely  bolted  to  buffer-beam,  end-sill  or 
tank-frame  by  not  less  than  two  (2)  seven-eighths  (%)  inch 
bolts. 

If  side  footboards  are  used,  a  substantial  handhold  or  rail 
shall  be  applied  not  less  than  thirty  (30)  inches  nor  more 
than  sixty  (60)  inches  above  tread  of  footboard. 

sill-steps 

Number:  Two  (2)  or  more. 

Dimensions  :  Lower  tread  of  step  shall  be  not  less  than 


442  APPENDIX 

eight  (8)  by  twelve  (12)  inches,  metal.  [May  have  wooden 
treads.] 

If  stirrup-steps  are  used,  clear  length  of  tread  shall  be  not 
less  than  ten  (10),  preferably  twelve  (12),  inches. 

Location:  One  (1)  or  more  on  each  side  at  gangway  se- 
cured to  locomotive  or  tender. 

Manner  of  Application:  Sill-steps  shall  be  securely 
fastened  with  bolts  or  rivets. 

end-handholds 

Number:  Two  (2). 

Dimensions:  Minimum  diameter,  one  (1)  inch,  wrought 
iron  or  steel. 

Minimum  clearance,  four  (4)  inches,  except  at  coupler 
casting  or  braces,  when  minimum  clearance  shall  be  two 
(2)  inches. 

Location:  One  (1)  on  pilot  buffer-beam ;  one  (1)  on  rear 
end  of  tender,  extending  across  front  end  of  locomotive  and 
rear  end  of  tender.  Ends  of  handholds  shall  be  not  more 
than  six  (6)  inches  from  ends  of  buffer-beam  or  end-sill, 
securely  fastened  at  ends. 

Manner  of  Application:  End-handholds  shall  be  se- 
curely fastened  with  bolts  or  rivets. 

side-handholds 

Number:  Four  (4). 

Dimensions:  Minimum  diameter,  seven-eighths  (%)  of 
an  inch,  wrought  iron  or  steel. 

Clear  length  equal  to  approximate  height  of  tank. 

Minimum  clearance,  two  (2),  preferably  two  and  one-half 
(21/2),  inches. 

Location:  Vertical:  One  (1)  on  each  side  of  tender  near 
front  corner;  one  (1)  on  each  side  of  locomotive  at  gang- 
way. 

Manner  op  Application:  Side-handholds  shall  be  se- 
curely fastened  with  bolts  or  rivets. 


ORDER   RELATIVE  TO  SAFETY   APPLIANCES  443 

UNCOUPLING-LEVERS 

Number:  Two  (2)  double  levers,  operative  from  either 
side. 

Dimensions:  Handles  of  front-end  levers  shall  be  not 
more  than  twelve  (12),  preferably  nine  (9),  inches  from 
ends  of  buffer-beam,  and  shall  be  so  constructed  as  to  give 
a  minimum  clearance  of  two  (2)  inches  around  handle. 

Rear-end  levers  shall  extend  across  end  of  tender  with 
handles  not  more  than  twelve  (12),  preferably  nine  (9), 
inches  from  side  of  tender,  with  a  guard  bent  on  handle  to 
give  not  less  than  two  (2)  inches  clearance  around  handle. 

Location  :  One  (1)  on  rear  end  of  tender  and  one  (1)  on 
front  end  of  locomotive. 

handrails  and  steps  for  headlights 

Switching-locomotive  with  sloping  tenders  with  manhole 
or  headlight  located  on  sloping  portion  of  tender  shall  be 
equipped  with  secure  steps  and  handrail  or  with  platform 
and  handrail  leading  to  such  manhole  or  headlight. 

end-ladder  clearance 

No  part  of  locomotive  or  tender  except  draft-rigging, 
coupler  and  attachments,  safety-chains,  buffer-block,  foot- 
board, brake-pipe,  signal-pipe,  steam-heat  pipe  or  arms  of 
uncoupling-lever  shall  extend  to  within  fourteen  (14)  inches 
of  a  vertical  plane  passing  through  the  inside  face  of 
knuckle  when  closed  with  horn  of  coupler  against  buffer- 
block  or  end-sill. 

couplers 

Locomotives  shall  be  equipped  with  automatic  couplers 
at  rear  of  tender  and  front  of  locomotive. 


444  APPENDIX 

SPECIFICATIONS  COMMON  TO  ALL  STEAM 
LOCOMOTIVES 

HAND-BRAKES 

Hand-brakes  will  not  be  required  on  locomotives  nor  on 
tenders  when  attached  to  locomotives. 

If  tenders  are  detached  from  locomotives  and  used  in 
special  service,  they  shall  be  equipped  with  efficient  hand- 
brakes. 

RUNNING-BOABDS 

Number:  Two  (2). 

Dimensions:  Not  less  than  ten  (10)  inches  wide.  If  of 
wood,  not  less  than  one  and  one-half  (II/2)  inches  in  thick- 
ness; if  of  metal,  not  less  than  three-sixteenths  (ye)  of  an 
inch,  properly  supported. 

Location  :  One  ( 1 )  on  each  side  of  boiler  extending  from 
cab  to  front  end  near  pilot-beam.  [Running-hoards  may  he 
in  sections.  Flat-top  steam-chests  may  form  section  of 
running-hoard.^ 

Manner  of  Application:  Running  boards  shall  be  se- 
curely fastened  with  bolts,  rivets  or  studs. 

Locomotives  having  Wootten  type  boilers  with  cab  located 
on  top  of  boiler  more  than  twelve  (12)  inches  forward  from 
boiler-head  shall  have  suitable  running-boards  running  from 
cab  to  rear  of  locomotive,  with  handrailings  not  less  than 
twenty  (20)  nor  more  than  forty-eight  (48)  inches  above 
outside  edge  of  running-boards,  securely  fastened  with  bolts, 
rivets  or  studs. 

handrails 

Number:  Two  (2)  or  more. 

Dimensions:  Not  less  than  one  (1)  inch  in  diameter, 
wrought  iron  or  steel. 

Location:  One  (1)  on  each  side  of  boiler  extending  from 
near  cab  to  near  front  end  of  boiler,  and  extending  across 
front  end  of  boiler,  not  less  than  twenty-four  (24)  nor  more 
than  sixty-six  (66)  inches  above  running-board. 


ORDER  RELATIVE  TO  SAFETY  APPLIANCES       445 

Manner  of  Application:  Handrails  shall  be  securely 
fastened  to  boiler, 

tenders  of  vanderbilt  type 

Tenders  known  as  the  Vanderbilt  type  shall  be  equipped 
with  running-boards;  one  (1)  on  each  side  of  tender  not  less 
than  ten  (10)  inches  in  width  and  one  (1)  on  top  of  tender 
not  less  than  forty-eight  (48)  inches  in  width,  extending 
from  coal  space  to  rear  of  tender. 

There  shall  be  a  handrail  on  each  side  of  top  running- 
board,  extending  from  coal  space  to  rear  of  tank,  not  less 
than  one  (1)  inch  in  diameter  and  not  less  than  twenty 
(20)  inches  in  height  above  running-board  from  coal  space 
to  manhole. 

There  shall  be  a  handrail  extending  from  coal  space  to 
within  twelve  (12)  inches  of  rear  of  tank,  attached  to  each 
side  of  tank  above  side  running-board,  not  less  than  thirty 
(30)  nor  more  than  sixty -six  (66)  inches  above  running- 
board. 

There  shall  be  one  (1)  vertical  end-handhold  on  each  side 
of  Vanderbilt  type  of  tender,  located  within  eight  (8) 
inches  of  rear  of  tank  extending  from  within  eight  (8) 
inches  of  top  of  end-sill  to  within  eight  (8)  inches  of  side 
handrail.  Post  supporting  rear  end  of  side  running-board 
if  not  more  than  two  (2)  inches  in  diameter  and  properly 
located,  may  form  section  of  handhold. 

An  additional  horizontal  end-handhold  shall  be  applied 
on  rear  end  of  all  Vanderbilt  type  of  tenders  which  are  not 
equipped  with  vestibules.  Handhold  to  be  located  not  less 
than  thirty  (30)  nor  more  than  sixty-six  (66)  inches  above 
top  of  end-sill.  Clear  length  of  handhold  to  be  not  less 
than  forty-eight  (48)  inciies. 

Ladders  shall  be  applied  at  forward  ends  of  side  running- 
boards. 

handrails  and  steps  for  headlights 

Locomotives  having  headlights  which  can  not  be  safely 
and  conveniently  reached  from  pilot-beam  or  steam-chests 


446  APPENDIX 

shall  be  equipped  with  secure  handrails  and  steps  suitable 
for  the  use  of  men  in  getting  to  and  from  such  headlights. 

A  suitable  metal  end  or  side-ladder  shall  be  applied  to  all 
tanks  more  than  forty-eight  (48)  inches  in  height,  measured 
from  the  top  of  end-sill,  and  securely  fastened  with  bolts 
or  rivets, 

COUPLERS 

Locomotives  shall  be  equipped  with  automatic  couplers 
at  rear  of  tender  and  front  of  locomotive. 

Cars  of  construction  not  covered  specifically  in  the  fore- 
going sections,  relative  to  handholds,  sill-steps,  ladders, 
hand-brakes  and  running-boards  may  be  considered  as  of 
special  construction,  but  shall  have,  as  nearly  as  possible, 
the  same  complement  of  handholds,  sill-steps,  ladders,  hand- 
brakes and  running-boards  as  are  required  for  cars  of  the 
nearest  approximate  type. 

"Right"  or  "Left"  refers  to  side  of  person  when  facing 
end  .or  side  of  car  from  ground. 

To  provide  for  the  usual  inaccuracies  of  manufacturing 
and  for  wear,  where  sizes  of  metal  are  specified,  a  total 
variation  of  five  (5)  per  cent  below  size  given  is  permitted. 

And  it  is  further  ordered,  That  a  copy  of  this  order  be  at 
once  served  on  all  common  carriers,  subject  to  the  provisions 
of  said  act,  in  a  sealed  envelope  by  registered  mail. 


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APPENDIX  N 

ORDER  OF  THE   INTERSTATE    COMMERCE   COM- 
MISSION, MARCH  13,  1911 

In  the  matter  of  the  extension  of  the  period  within  which 
common  carriers  shall  comply  with  the  requirements  of 
an  act  entitled,  ' '  An  act  to  supplement '  an  act  to  promote 
the  safety  of  employes  and  travelers  upon  railroads  by 
compelling  common  carriers  engaged  in  interstate  com- 
merce to  equip  their  cars  with  automatic  couplers  and 
continuous  brakes  and  their  locomotives  with  driving- 
wheel  brakes  and  for  other  purposes,'  and  other  safety 
appliance  acts,  and  for  other  purposes,"  approved  April 
14,  1910,  as  amended  by  "An  act  making  appropriations 
for  sundry  civil  expenses  of  the  government  for  the  fiscal 
year  ending  June  30,  1912,  and  for  other  purposes," 
approved  March  4,  1911. 

Whereas,  pursuant  to  the  provisions  of  the  act  above 
stated,  the  Interstate  Commerce  Commission,  by  its  orders 
duly  made  and  entered  on  October  13,  1910,  and  March  13, 
1911,  has  designated  the  number,  dimensions,  location,  and 
manner  of  application  of  the  appliances  provided  for  by 
section  2  of  the  act  aforesaid  and  section  4  of  the  act  of 
March  2,  1893,  as  amended  April  1,  1896,  and  March  2, 
1903,  known  as  the  ' '  Safety  Appliance  Acts ; ' '  and  whereas 
the  matter  of  extending  the  period  within  which  common 
carriers  shall  comply  with  the  provisions  of  section  2  of 
the  act  first  aforesaid  being  under  consideration,  upon  full 
hearing  and  for  good  cause  shown : 

It  is  ordered,  That  the  period  of  time  within  which  said 
common  carriers  shall  comply  with  the  provisions  of  section 

447 


448  APPENDIX 

3  of  said  act  in  respect  of  the  equipment  of  cars  in  service 
on  the  1st  day  of  July,  1911,  be,  and  the  same  is  hereby, 
extended  as  follows,  to- wit: 

FEEIGHT-TRAIN   CARS 

(a)  Carriers  are  not  required  to  change  the  brakes  from 
right  to  left  side  on  steel  or  steel-underframe  cars  with 
platform  end  sills,  or  to  change  the  end-ladders  on  such 
cars,  except  when  such  appliances  are  renewed,  at  which 
time  they  must  be  made  to  comply  with  the  standards  pre- 
scribed in  said  order  of  March  13,  1911. 

(b)  Carriers  are  granted  an  extension  of  five  years  from 
July  1,  1911,  to  change  the  location  of  brakes  on  all  cars 
other  than  those  designated  in  paragraph  (a)  to  comply 
with  the  standards  prescribed  in  said  order. 

(c)  Carriers  are  granted  an  extension  of  five  years  from 
July  1, 1911,  to  comply  with  the  standards  prescribed  in  said 
order  in  respect  of  all  brake  specifications  contained  therein, 
other  than  those  designated  in  paragraphs  (a)  and  (b),  on 
cars  of  all  classes. 

(d)  Carriers  are  not  required  to  make  changes  to  secure 
additional  end-ladder  clearance  on  cars  that  have  ten  or 
more  inches  end-ladder  clearance,  within  thirty  inches  of 
side  of  car,  until  car  is  shopped  for  work  amounting  to 
practically  rebuilding  body  of  car,  at  which  time  they  must 
be  made  to  comply  with  the  standards  prescribed  in  said 
order. 

(e)  Carriers  are  granted  an  extension  of  five  years  from 
July  1,  1911,  to  change  cars  having  less  than  ten  inches 
end-ladder  clearance,  within  thirty  inches  of  side  of  car, 
to  comply  with  the  standards  prescribed  in  said  order. 

(f)  Carriers  are  granted  an  extension  of  five  years  from 
July  1,  1911,  to  change  and  apply  all  other  appliances  on 
freight-train  cars  to  comply  with  the  standards  prescribed 
in  said  order,  except  that  M'hen  a  car  is  shopped  for  work 
amounting  to  practically  rebuilding  body  of  car,  it  must 
then  be  equipped  according  to  the  standards  prescribed  ia 


TIMB    FOR  COMPLIANCE   WITH   ORDER  449 

said  order  in  respect  to  handholds,  running  boards,  ladders, 
sill  steps,  and  brake  staffs:  Provided,  That  the  extension  of 
time  herein  granted  is  not  to  be  construed  as  relieving 
carriers  from  complying  with  the  provisions  of  section  4  of 
the  act  of  March  2,  1893,  as  amended  April  1,  1896,  and 
March  2,  1903. 

(g)  Carriers  are  not  required  to  change  the  location  of 
handholds  (except  end  handholds  under  end  sills),  ladders, 
sill  steps,  brake  wheels,  and  brake  staffs  on  freight  train 
cars  where  the  appliances  are  within  three  inches  of  the 
required  location,  except  that  when  cars  undergo  regular 
repairs  they  must  then  be  made  to  comply  with  the  stand- 
ards prescribed  in  said  order. 

PASSENGER-TRAIN  CARS 

(h)  Carriers  are  granted  an  extension  of  three  years  from 
July  1,  1911,  to  change  passenger-train  cars  to  comply  with 
the  standards  prescribed  in  said  order. 

LOCOMOTIVES,    SWITCHING 

(i)  Carriers  are  granted  an  extension  of  one  year  from 
July  1,  1911,  to  change  switching  locomotives  to  comply 
with  the  standards  prescribed  in  said  order. 

LOCOMOTIVES,  OTHER  THAN  SWITCHING 

(j)  Carriers  are  granted  an  extension  of  two  years  from 
July  1,  1911,  to  change  all  locomotives  of  other  classes  to 
comply  with  the  standards  prescribed  in  said  order. 


Boberts  laabillUes— 29 


APPENDIX  0 

BOILER  INSPECTION— AMENDATORY  ACT.i 

An  Act  To  amend  an  Act  entitled  "An  Act  to  promote 
the  safety  of  employees  and  travelers  upon  railroads  by  com- 
pelling common  carriers  engaged  in  interstate  commerce  to 
equip  their  locomotives  with  safe  and  suitable  boilers  and 
appurtenances  thereto,"  approved  February  seventeenth, 
nineteen  hundred  and  eleven. 

Be  it  enacted  hy  the  Senate  and  House  of  Representa- 
tives of  the  United  States  of  America  in  Congress  assembled, 
That  section  two  of  the  Act  entitled  "An  Act  to  promote 
the  safety  of  employees  and  travelers  upon  railroads  by  com- 
pelling common  carriers  engaged  in  interstate  commerce  to 
equip  their  locomotives  with  safe  and  suitable  boilers  and 
appurtenances  thereto,"  approved  February  seventeenth, 
nineteen  hundred  and  eleven,  shall  apply  to  and  include  the 
entire  locomotive  and  tender  and  all  parts  and  appurte- 
nances thereof. 

Sec.  2.  That  the  chief  inspector  and  the  two  assistant 
chief  inspectors,  together  with  all  the  district  inspectors, 
appointed  under  the  Act  of  February  seventeenth,  nineteen 
hundred  and  eleven,  shall  inspect  and  shall  have  the  same 
powers  and  duties  with  respect  to  all  the  parts  and  appurte- 
nances of  the  locomotive  and  tender  that  they  now  have  with 
respect  to  the  boiler  of  a  locomotive  and  the  appurtenances 
thereof,  and  the  said  Act  of  February  seventeenth,  nineteen 
hundred  and  eleven,  shall  apply  to  and  include  the  entire 
locomotive  and  tender  and  all  their  parts  with  the  same 
force  and  effect  as  it  now  applies  to  locomotive  boilers  and 
their  appurtenances.  That  upon  the  passage  of  this  Act  all 
inspectors  and  applicants  for  the  position  of  inspector  shall 
be  examined  touching  their  qualifications  and  fitness  with 
respect  to  the  additional  duties  imposed  by  this  Act. 

Sec.  3.  That  nothing  in  this  Act  shall  be  held  to  alter, 
amend,  change,  repeal,  or  modify  any  other  Act  of  Congress 

1  This  Act  was  passed  and  approved  while  the  work  was  on  the 
press  and  consequently  could  not  be  inserted  in  its  proper  place 
following  the  Act  of  which  it  is  amendatory.  The  latter  Act  will 
be  found  on  page  379,  ante. 

450 


BOILER  INSPECTION — AMENDATORY  ACT  451 

than  the  said  Act  of  February  seventeenth,  nineteen  hun- 
dred and  eleven,  to  which  reference  is  herein  specifically 
made,  or  any  order  of  the  Interstate  Commerce  Commission 
promulgated  under  the  safety  appliance  Act  of  March 
second,  eighteen  hundred  and  ninety-three,  and  supple- 
mental Acts. 

Sec.  4.     That  this  Act  shall  take  effect  six  months  after 
its  passage,  except  as  otherwise  herein  provided. 

Approved,  March  4,  1915. 


INDEX 


A 

ACCIDENTS— 

Slipping  of  tie  while  being  handled,  when  result  of,  §  24,  p.  62. 
ACTIONS— 

Ancillary  administrator,  right  to  sue  for  death,  §  142,  p.  250. 
Cause  of  action,  under  Federal  Act,  recovery  where  petition  under 

state  law,  §§  149,  160,  pp.  257,  277-280. 

under  state  law,  recovery  permitted  under  federal  act,  when, 
§  150,  p.  260. 
Counts,  right  to  set  up  action  under  both  state  and  federal  acts 

in  separate  counts,  §  152,  pp.  268-270. 
Exclusiveness  of  remedy,  §  7,  p.  11. 
Federal  court,  right  to  bring  in,  §  124,  pp.  232,  233. 
Foreign  administrator,  right  to  sue,  §  147,  p.  253. 
Jury  of  less  than  twelve,  effect  of  state  laws  permitting  verdict 

by,  §  176,  pp.  312-314. 
Necessity  for  bringing  under  Federal  Act,  §  7,  p.  11. 
Parties  in  actions  under  the  Employers'  Liability  Act,  §§  139-147, 

pp.  246-253. 
Paupers,  right  to  sue  as,  §  179,  pp.  318,  319. 
Pleadings  in  actions  under  Employers'  Liability  Act,  §§  148-163, 

pp.  264-287. 
Ees  adjudieata,  when  action  under  state  law  is,  §  177,  pp.  314-317. 
Kevival,  who  may  revive  suit  commenced  by  employe  in  lifetime, 

§  143,  p.  251. 
Simultaneous  proceeding  under  state  and  Federal  Acts,  §  175,  pp. 

307-311. 
State  courts,  right  to  bring  in,  §  125,  p.  233. 
Want  of  legal  capacity  in  widow  to  sue  not  subject  to  waiver, 

§  141,  pp.  248,  249. 
ADMINISTRATORS— 

Actions  for  death  to  be  brought  by,  §§  139-141,  pp.  246-249. 

Ancillary  may  sue,  §  142,  p.  250. 

Appointment  not   dependent   upon   existence   of   other   property, 

§  144,  pp.  251,  252. 
Right  of  foreign  administrator  to  sue,  §  147,  p.  253. 
ADMIRALTY— 

Limitation  of  liability  by  ship  owners,  power  to  enforce  in,  §  60, 

p.  131. 

453 


454  INDEX 

AGENTS— 

Construction  of  Employers '  Liability  Act  as  to,  §  19,  p.  43. 
Express,  see  Express  Companies. 
AIR  BRAKES— 

See  Power  Brakes. 
AIR-HOSE— 

Coupling,  risk  of  injury   from  kicked  car  not  assumed,   §  104, 
p.  205. 
ALIENS— 

Right  to  recover  for  death,  §  83,  pp.  161,  162. 
ALIGHTING  FROM  CAR— 

Porter  injured  by  falling  through  bridge,  §  23,  p.  53. 
AMENDMENTS— 

Conformity  to  proofs,  p.  256n. 

Limitations,  power  to  amend  after  expiration  of  period  of,  §  162, 
pp.  281-284. 

when  not  allowed  after  expiration  of  period  of,   §  163,  pp. 
285-287. 
Setting  up  statute  after  evidence  in,  propriety  of  striking,  §  161, 

p.  281. 
State  laws,  controlling  efifect  of,  in  actions  under  Federal  Act, 
§  9,  p.  16. 
AMENDMENTS  OF  1910— 

Instantaneous  death,  right  to  recover  for,  §  85,  pp.  163,  164. 
Pain  and  suffering,  right  to  recover  for,  §  89,  pp.  174-176. 
Recovery  for  pain  and  suffering  of  deceased  prior  to,  §  84,  pp. 

162,  163. 
Report  of  House  Judiciary  Committee  on,  App.  pp.  342-347. 
Report  of  Senate  Judiciary  Committee,  App.  pp.  348-373. 
Text  of,  App.  pp.  326,  327. 
APPEAL  AND  ERROR— 

Effect  of  ruling  of  state  court  that  federal  question  was  suffi- 
ciently raised,  §  134,  pp.  242,  243. 
Evidence,  question  of  sufficiency  of,  as  sustaining  writ  of  error 

by  U.  S.  Supreme  Court,  §  132,  pp.  239-241. 
Excessiveness  of  verdict  not  reviewable  in  U.  S.  Supreme  Court, 

§  138,  p.  245. 
Federal  questions,  how  may  be  raised  to  support  writ  of  error 
by  United  States  Supreme  Court,  §  135,  pp.  243,  244. 
insufficiency  of  petition  as  raising,  §  137,  p.  245. 
not  raised  by  submission  to  jury  under  state  law  at  request 
of  plaintiff  in  error,  §  136,  p.  244. 
Harmless  error,  failure  to  apportion  damages  among  beneficiaries, 
§  178,  p.  317. 

instruction  on  burden  of  proof,  §  178,  p.  317. 

effect  of  contributory  negligence,  §  178,  p.  318. 


INDEX  455 

APPEAL  AND  ERROE^Cont. 
Harmless  error — Cont. 

measure  of  damages,  §  178,  p.  317. 
when  is,  §  22,  p.  50. 
recovery   under   petition   under   state   law,   though   evidence 

shows  action  under  Federal  Act,  §  151,  pp.  263-268. 
refusal  to  require  election  before  trial,  §  174,  pp.  305,  306. 
United  States  Supreme  Court,  incidental  questions  not  reviewable 
on  writ  of  error  to  state  court,  §  133,  p.  241. 

jurisdiction  to  review  judgment  of  state  court,  §  130,  p.  238. 
sufficiency  of  record  to  set  up  federal  question,  §  131,  p.  239. 
Want  of  capacity  in  widow  to  sue,  when  may  be  raised,  §  241, 
pp.  248,  249. 
APPLIANCES— 

Instructions,  when  erroneous  as  to,  §  12,  p.  21. 
Obsolete,  furnishing  engine  with,  §  24,  p.  57. 
ASH  PAN— 

Defective,  causing  fire  on  bridge,  §  22,  p.  50. 
ASH  PAN  ACT— 

Text  of,  App.  pp.  374,  375. 
ASSAULTS— 

Wilful,  inapplicability  of  Act  to,  §  25,  p.  65. 
ASSUMPTION  OF  RISK— 
Cinder  piles,  §  106,  p.  214, 
Clearance  between  cars,  when  question  for  jury,  §  104,  pp.  203, 

204. 
Contributing  causes,  when  doctrine  inapplicable,  §  101,  p.  199. 
Contributory  negligence  distinguished  from,  §  103,  pp.  200,  201. 
Coupling  air-hose,  injury  by  kicking  cars,  §  104,  p.  205. 
Decisions  holding  employe  to  have  assumed  risk,  §  105,  pp.  206, 

207. 
Defective  flange  on  wheels,  §  98,  pp.  195,  196. 
Defense,  violation  of  federal   safety  acts,   §  100,  pp.   197-199. 

when  considered  as,  §  97,  pp.  191-193. 
Doors,  defective  fastening,  risk  not  assumed,  §  104,  p.  206. 
Electric  wire,  engineer  killed  by  overhead  wire  while  returning 

from  top  of  tender,  §  105,  pp.  206,  207. 
Fall  from  engine  due  to  excessive  continuous  service,  risk  assumed, 

§  105,  pp.  210,  211. 
Fall  into  drop  pit,  risk  assumed,  §  105,  pp.  210,  211. 
Federal  courts,   controlling  effect   of   decisions  on   state   courts, 

§  8,  p.  15. 
Hours   of  service  act,   violation  of,   §  108,  p.   215. 
Instructions,  approved  form  of,  §  98,  pp.  195-197. 

necessity  for  giving  concrete,  §  99,  p.  197. 
Insufficient  assistance,  risk  not  assumed,  §  104,  p.  206. 


456  INDEX 

ASSUMPTION  OF  EISK— Cont. 

Locomotive   leaking   steam   preventing   view   of   track,   risk   not 
assumed,  §  104,  p.  205. 

Negligence  of  flagman,  risk  of  injury  not  assumed  by  conductor, 
§  104,  p.  205. 

Pilot  of  road  engine,  when  risk  of  fall  from  not  assumed,  §  104, 
p.  204. 

Pleading,  necessity  for,  §  106,  p.  212. 

Eebound  of  rail  thrown  on  ground,  risk  assumed,  §  105,  p.  209. 

Review  of  statutory  provision,  §  96,  p.  190. 

Safety  Appliance  Act,  risk  on  violation  of,  not  assumed,  App. 
p.  388. 

Snow,   risk   of   injury   while   cleaning   from   track  not   assumed, 
§  104,  p.  201. 

State  legislation,  effect  of  Federal  Act  on,  §  7,  p.  11. 
inapplicability  of,  §  100,  pp.  198,  199. 

Stepping  between  two  cars  in  terminal  yard,  risk  assumed,  §  105, 
p.  209. 

Striking  unlighted  switchstand,  risk  not  assumed,  §  104,  p.  206. 

Violation  of  rules  not  an  assumed  risk,  §  102,  p.  200. 

Warning,   injury   to   track   laborer   by   cars   proceeding  without, 
risk  not  assumed,  §  104,  pp.  205,  206. 

Water  glass,  risk  arising  from  absence  of,  assumed,  §  105,  p.  209. 

What  risks  assumed,  §  98,  pp.  193-195. 
AUTOMATIC  COUPLEES— 

Extension  of  time  for  compliance  with  order  of  Interstate  Com- 
merce Commission,  App.  pp.  447-449. 

Locomotives,  specifications  regarding,   order  of   Interstate  Com- 
merce Commission,  App.  p.  446. 

Eoad  engines,  order  of  Interstate  Commerce  Commission,  App. 
p.  440. 

Switch  engines,  order  of  Interstate  Commerce  Commission,  App. 
p.  443. 

Text  of  statutes  governing,  App.  pp.  386-393. 

B 

BACKING  TEAINS— 

Brakemen  crushed  against  platform  by,  §  17,  p.  33. 
BAD  OEDER  CAES— 

Eepair  tracks,  employment  in  interstate  commerce,  §  63,  p.  134. 
BAGGAGE— 

Express  agents  handling,  as  employes  of  raUroad,  §  44,  p.  109. 
BAGGAGE  CAES— 

Steps  on,  torn  off  by  striking  boxes  on  platform,  baggageman 
injured,  §23,  p.  53. 


INDEX  457 

BAGGAGE  EE CORDS— 

Contents  and  how  required  to  be  kept,  §  168,  p.  293. 
Custodian  of,  §  168,  p.  291. 
BASTAEDS— 

See  Illegitimate  Children. 
BENEFICIAEIES— 

Actions  for  death,  §§  71-74,  pp.  145-150. 

Aliens  as,  §  83,  pp.  161,  162. 

Apportionment  of  damages  among,  §§  79,  95,  pp.  153,  189. 

Children,  necessity  for  allegations  as  to  number  and  age,  §  157, 

p.  275. 
Distribution,  state  laws  governing  superseded,  §  94,  pp.  188,  189. 
Existence  of,  as  jurisdictional,  §  72,  p.  146. 
Expectation  of  pecuniary  assistance,  §  82,  p.  160. 
Instructions,  approved  forms  of,  §  87,  pp.  165-170. 

erroneous,   §  88,  pp.   170-174. 
Pecuniary  loss  as  dependent  upon  legal  liability  of  decedent  to, 
§  82,  p.  160. 

necessity  for  allegation  showing,  §  158,  pp.  275,  276. 
Pleading,  necessity  for  allegation  of  survival  of,  §  157,  pp.  274, 

275. 
Widow,  right  to  sue  for  death  of  husband,  §  140,  p.  247. 
BENEFITS— 

Acceptance  no  bar  to  suit  against  joint  tort-feasor,   §  123,   pp. 

230,  231. 
Contracts  exempting  carrier  from  liability  forbidden,  §§  120-123, 
pp.  228-231. 
BILI^  OF  LADING — 

Custodian  of,   §  168,  p.   291. 

Local,    transportation   through   state   on   as    affecting   interstate 
character  of  traffic,  §  69,  pp.  142,  143. 
BLOCK  SYSTEM— 

Construction  of,  employes  engaged  in  as  employed  in  interstate 
commerce,  §  41,  p.  107. 
EOAEDING  TEAINS— 

Assurance  of  fellow-servant  that  train  would  move  slowly,   §  24, 

p.  61. 
Track  laborer  injured  while  proceeding  to  get  camp  mail,  §  39, 
pp.  102,  103. 
BOATS— 

See  Vessels. 
BOILEE  INSPECTION  ACT— 

Tenders,  application  of  Act  to,  App.  p.  450. 
Text  of,  App.  pp.  379-385. 
BOILER  MAKEE— 

Fall  into  "drop  pit,"  risk  assumed,  §  105,  pp.  210,  211. 


458  INDEX 

BOILEE  MAKER— Cont. 

Injury  while  repairing  boiler  on  wrecking  train,  §  32,  pp,  82,  83. 

Interstate  commerce,  repairing  derrick  boiler  on  wrecking  train 
as  involving,  §  46,  p.  111. 

Repairing  engine  not  actually  in  use  in  interstate  commerce,  but 
destined  therefor,   §  31,  p.  78. 
BOX  CARS— 

Hand  brakes  on  box  and  other  house  cars,  order  affecting,  App. 
pp.  398-400. 

Roof  blowing  off,  failure  to  inspect  after,  §  23,  p.  52. 
BOXES— 

Steps  of  baggage  car  torn  off  by  striking,  §  23,  p.  53. 
BRAKEMEN— 

Boarding  moving  train,  failure  to   adopt  rules  as  to  stopping, 
negligence,  §  19,  p.  43. 

Coupling  air-hose,  risk  of  injury  from  kicked  car  not  assumed, 
§  104,  p.  205. 

Crushed  against  platform,  §  24,  p.  63. 

injury  as  result  of  sole  negligence,  §  17,  p.  33. 

Doors,  defective  fastening,  risk  not  assumed,  §  104,  p.  206. 

Existence  of  relation  of  master  and  servant  as  to  student  brake- 
man,  §  14,  p.  28. 

Failure  to  flag  train,  liability  of  railroad  for  death  of  conductor, 
§  23,  p.  51. 

Falling  from   interstate  train  while  setting   out  intrastate   car, 
§  35,  p.  90. 

Falling  into  cinder  pit  while  seeking  tool  boy,  p.  95n. 

Hot-box,  injured  while  carrying  ice  to  cool,  §  37,  p.  97. 

Interstate  commerce,  engagement  in,  §  28,  p.  70. 

sufficiency  of  evidence  to  show  engagement  in,  §  171,  p.  298. 
trains   operating   between   intrastate  terminals,  where  some 
cars  destined  beyond  state,  §  28,  p.  69. 

Interstate  train,  application  of  Act,   §  28,  p.  69. 

Intrastate  cars,  injury  while  engaged  in  picking  up  for  interstate 
trains,  §  35,  p.  89. 

Jumping   from   train   in   fear   of   explosion,   sufficiency   of   com- 
plaint, p.  272n. 

Personal  errands,  injury  in  yards  while  returning  from  saloon, 
p.  25n. 

Returning   on   pass,   employment   in   interstate   commerce,    §  39, 
p.  102. 

Sleeping  on  track,  injured  while,  §  18,  p.  40. 

Struck  by  cars  on  adjoining  track,  §  24,  p.  56. 

Switching  car  destined  beyond  state,  injured  while,  §  34,  p.  87. 

brakes- 
Box  and  other  house  cars,  order  affecting,  App.  pp.  398-400. 


INDEX  459 

BRAKES— Cont. 

Caboose  cars,  order  of  Interstate  Commerce  Commission,  App.  pp. 

424,  428. 
Flatcars,  order  of  Interstate  Commerce   Commission,   App.   pp. 

414,  415. 

Hand,  text  of  statute  governing,  App.  p.  391. 

Hopper  and  gondola  cars,  on,  App.  pp.  407-413. 

Locomotives,  specifications  regarding,  order  of  Interstate  Com- 
merce Commission,  App.  p.  44. 

Passenger  cars,  order  of  Interstate  Commerce  Commission,  App. 
pp.  432-436. 

Power,  order  of  Interstate  Commerce  Commission  fixing  minimum 
percentage  of,  App.  p.  394. 

Tank  cars,  order  of  Interstate  Commerce  Commission,  App.  pp. 

415,  417,  421. 

Text  of  statute  governing,  App.  pp.  386-393. 

Tricycles,  failure  to  show  negligence  in  ordering  application  of 
brake  on,  §  24,  pp.  64,  65. 
BRIDGE  CARPENTERS— 

Flagman,  failure  to  protect  by,  as  negligence,  §  23,  p.  54. 
BRIDGE  WORKERS— 

Employe  on  railroads  engaged  indiscriminately  in  interstate  and 
intrastate  commerce,    §  30,  p.   72. 
BRIDGES— 

Burning,  employe  killed  by  falling  of  engine  through,  §  22,  p.  49. 

maintaining  in  condition  likely  to  be  inflammable,  §  22,  p.  50. 

Carpenter  working  on  as  engaged  in  interstate  commerce,   §  46, 

p.  113. 
Carrying  bolts  for  repair  of,  injury  to  employe  engaged  in,  §  30, 

p.  74. 
Collapse  of,  destruction  of  supports  by  fire,  §  23,  p.  50. 
Iron  worker  repairing,  as  engaged  in  interstate  commerce,  §  30, 

p.  73. 
Porter  injured  by  falling  through,  §  23,  p.  53. 
Repairing,  injury  to  employe  struck  by  pile,  §  23,  p.  52. 
BUNK  CARS— 

Injury  to  employe  while  sleeping  in,  §  14,  p.  25. 
Sleeping  in,  employment  in  interstate  commerce,  §  39,  pp.  99,  100. 
BUSINESS  OF  EMPLOYER— 

Brakeman  injured  while  returning  from  saloon,  p.  25n. 
Engineer  killed  on   stepping  into   pit   after  sleeping  in   engine, 

§  14,  p.  26. 
Injury  to  employe  while  sleeping  in  bunk  car,  §  14,  p.  25. 
Necessity  that  negligent  fellow-servant  be  engaged  in,  §  14,  p.  24. 


460  INDEX 

c 

CABOOSE  CARS— 

Equipment  on,  order  of  Interstate  Commerce  Commission,  App. 
pp.  424-432. 
CAMPS— 

Track  laborer  injured  while  proceeding  to  get  mail  for  camp,  §  39, 
pp.  102,  103. 
CAR  CHECKERS— 

Interstate  commerce,  employment  in,  §  42,  pp.  107,  108. 
CAR  INSPECTORS— 

Interstate  commerce,  character  of  employment,  §  38,  p.  98. 
Run  over  in  yards  by  engine  approaching  without  warning  or 
lights,  §  24,  p.  59. 
CAR  REPAIRERS— 

Cars  used  in  both  classes  of  commerce,  §  31,  p.  77. 

Injury  while  repairing  empty  car  returning  from  interstate  trip, 

§  32,  p.  80. 
Injury  while  repairing  on  coupler  of  foreign  car,  §  31,  p.  78. 
Interstate  commerce,  method   of  proving  engagement  in,   §  169, 
p.  293. 

necessity  for  evidence  showing  use  of  cars  in,  §  32,  p.  81. 
when  not  considered  as  engaged  in,  §  32,  pp.  80-83. 
Switching   operations,    injury   by,    while   working   on    car,    §  24, 
p.  58. 
CAR  REPORTS— 

Custodian  of,  §  168,  p.  291. 
CARS— 

Car  repairer  injured  while  working   on   empty,   returning   from 

interstate  trip,  §  32,  p.  80. 
Clearance  between,  order  affecting,  App.  p.  403. 
when  risk  not  assumed,  §  104,  pp.  203,  204. 
Draw   bars,   car   repairer   injured   while   repairing   on   interstate 

car,   §31,  p.  80. 
Indiscriminately  used  in  both  classes  of  commerce,  §  31,  pp.  77, 

78. 
Interstate  commerce,  necessity  for  evidence  showing  use  in,  §  32, 

p.  81. 
Intrastate,  moving  into  or  out  of  interstate  trains,  §  35,  pp.  88-92. 
Safety  Appliance  Act,  effect  of  noncompliance  with,  §  21,  p.  47. 
CARPENTERS— 

Bridge,  failure  to  protect  by  flagman  as  negligence,  §  23,  p.  54. 
Construction  of  new  oflBce  in  freight  shed,  employment  in  inter- 
state commerce,  §  41,  pp.  106,  107. 
Injured  while  repairing  car,  §  32,  p.  81. 

Interstate  commerce,  employment  in  while  working  on  railroad 
bridge,  §  46,  p.  113. 


INDEX  461 

CARPENTERS— Cont. 

Interstate  commerce — Cont. 

method  of  proving  engagement  in,  §  169,  p.  293. 
railroads  engaged  indiscriminately   in  interstate  and  intra- 
state commerce,  §  30,  p.  72. 
CARRIERS— 

Defined,  §  54,  pp.  123,  124. 

Extent  of  use  as  determining  character  of,  §  54,  p.  125. 
Intrastate  carrier  participating  in  movement  of  interstate  ship- 
ment,  §  65,  p.  135. 
Logging  roads  as,  §  54,  pp.  124,  125. 

Pleading,  necessity  for  alleging  that  defendant  is,  §  148,  p.  256. 
Railroads,   necessity   for  showing  operation   as   common   carrier, 

§  54,  p.  123. 
Reshipment  from   delivery  point,  effect  as  changing  interstate 

character  of  traffic,  §§  68,  69,  pp.  138-143. 
Test  for  determining  character  of,  §  54,  p.  125. 

children- 
Loss  of  care,  counsel,  training  and  education  as  elements  of  dam- 
ages, §  81,  pp.  158,  159. 
CHUTES— 

Employes  engaged  in  switching  coal  into,  §  37,  p.  96. 
CINDER  PILES— 

Assumption  of  risk  from  injury  from,  §  106,  p.  214. 
Negligence  in  permitting  close  to  track,  when  question  for  jury, 
§  24,  p.  55. 
CINDER  PIT— 

Brakeman  falling  into  while  seeking  tool  boy,  p.  95n. 
CLEARANCE— 

Between  cars,  assumed  risk,  when  question  for  jury,  §  104,  pp. 
203,  204. 

order  affecting,  App.  p.  403,  443. 
COAI^ 

Dumping  into  tender,  employes  engaged  in,  §  37,  p.  96. 
Employes  engaged  in  movement  of,  for  fuel  on  engines,   §  37, 

p.  96. 
Hauling  between  intrastate  points  for  ultimate  use  on  interstate 

trains,  p.  296n. 
Interstate  commerce,  employes  carrying,  to  heat  repair  shop  as 

engaged  in,  §  45,  p.  110. 
Movement  of  cars  containing,  for  fuel  for  engines  as  interstate 

commerce,  §  34,  p.  87. 
Switching  into  railroad  company's  chutes,  employes  engaged  in, 
§  37,  p.  96. 
COAL  CHUTE— 

Injury  to  student  brakeman  by,  §  14,  p.  28. 


462  INDEX 

COG  WHEELS— 

Brakes  on  tricycle,  failure  to  show  negligence  in  ordering  appli- 
cation of,  §  24,  pp.  64,  65. 
COLLISION— 

Failure  to  flag  train,  liability  of  railroad  for  negligence  of  brake- 
man,  §  23,  p.  51. 
Freight  conductor  injured  in,  §47,  pp.  115,  116 
Hand  car,  sudden  reduction  of  speed  as  negligence,  §  23,  p.  51. 
Hostler's  helper   injured  while  riding   on   pilot  in   violation   of 

rules,  §  14,  p.  29. 
Injury  to  employe  sleeping  in  bunk  car,  §  14,  p.  25. 
Section  man  injured  in  jumping  from  train  in  mistaken  belief 
of  imminence,   §  14,  p.   28. 
COMMERCE— 

Among  the  several  states,  meaning  of,  §  5,  p.  9. 

Constitutional   provisions,   how   term    "to   regulate"   construed, 

§  5,  p.  9. 
Interstate,  see  Interstate  Commeece. 

Safety  of  railroad  employes,  relation  to  interstate  commerce,  §  5, 
p.  9. 
COMMON  LAW— 

Adoption  of  principles  of,  in  Federal  Employers'  Liability  Act, 

§  18,  p.  37. 
Federal  courts,  when  liability  determined  from  common  law  of 

state,  §  18,  p.  37. 
Inapplicability  of,  where  construed  differently  by  federal  courts, 
§  18,  p.  39. 
COMPANY  PROPERTY— 

Trains  hauling  as  engaged  in  interstate  commerce,  §  62,  p.  133. 
COMPARATIVE  NEGLIGENCE— 

Georgia  statute,  distinguished  from  rule  under  Federal  Act,  §  114, 
p.  220. 
CONCURRENT  CAUSES— 

Liability  for,  under  clause  ' '  in  whole  or  in  part, "  §  15,  p.  30. 
CONDUCTORS— 

Coupling  cars,  uisufl&cieney  of  evidence  to  show  defective  couplers, 

§  24,  p.  64. 
Flagman,  risk  of  injury  from  negligence  of,  not  assumed,  §  104, 

p.  205. 
Inspecting  interstate  train,  injury  while,  §  38,  p.  98. 
Interstate  commerce,  employment  in  whUe  operating  intrastate 

train,  §47,  pp.   115,  116. 
Intrastate  commerce,  when  engaged  in,  p.  71n. 
Rear-end  collision,  liability  of  raUroad  for  negligence  of  brake- 
man  in  flagging  train,  §  23,  p.  51. 
Semaphore  post,  injured  by,  §  57,  p.  129. 


INDEX  463 

CONDUCTORS— Cont. 

Warning,  failure  to  warn  porter  that  trestle  was  not  floored,  as 
negligence,    §  23,   p.    53. 
CONDUCTORS'  REPORTS— 

Custodian   of,    §  168,   p.   291. 
CONGRESS— 

Interstate  commerce,  effect  of  failure  to  regulate,  §  7,  p.  14. 
extent  of  power  over,  §  5,  p.  8. 
CONSTITUTION— 

Power  to  regulate  commerce,  effect  of,  §  7,  p.  14. 
CONSTRUCTION  WORK— 

Employes  engaged  in  as  employed  in  interstate  commerce,  §  40, 
pp.  103-106. 
CONTINUOUS  CARRIAGE— 

Through   shipment,  what  constitutes,   rendering  shipment   inter- 
state commerce,  §  69,  pp.  141,  142. 
CONTRACTS— 

Forbidden,  §  121,  pp.  228,  229. 

character  of  contracts  forbidden,  §§  120-123,  pp.  228-231. 
Validity  of  provision  prohibiting  certain,  §  121,  pp.  228,  229. 
CONTRIBUTORY  NEGLIGENCE— 

Assumed  risk  distinguished  from,  §  103,  pp.  200,  201. 
Brakeman    crushed    against   platform,   injury   as   result   of    sole 

negligence  of,  §  17,  p.  33. 
Comparative   negligence    distinction    between    Georgia    rule    and 

Federal  Act,  §  114,  p.  220. 
Damages,  apportionment  in  case  of,  §  113,  p.  219. 
death,  reduction  on  account  of,  §  75,  p.  150. 
necessity  that  negligence  proximately  contribute  to  injury, 

§  115,  p.  220. 
not   diminished   where   federal   safety   acts   violated,    §  111, 
p.  218. 
Defined,  §  112,  p.  218. 

Demurrer  to  evidence,  not  ground  for,  §  116,  p.  221. 
Effect,  as  diminishing  damages,  §  17,  p.  33. 

Federal  Act  on  state  legislation  governing,  §  7,  p.  12. 
sole  cause  of  injury,  §  117,  p.  222. 
Employe's  negligence  as  sole  cause  of  injury,  §  17,  p.  32. 
Gross  negligence  of  employe,  recovery  not  defeated  though  neg- 
ligence of  defendant  slight,  §  116,  p.  221. 
Instructions,  approved  forms  of,  §  87,  p.  168. 
when  erroneous,   §  118,  pp.  223-226. 
when  harmless  error,  §  178,  p.  318. 
Nonsuit,  not  ground  for,  §  116,  p.  221. 

Pleading,  necessity  for  determination  by  state  law,   §  119,  pp. 
226,  227. 


464  INDEX 

CONTEIBUTORY  NEGLIGENCE— Cont. 

Review  of  provisions  of  the  Act  governing,  §  109,  pp.  216,  217. 
Eight  of  recovery  not  barred  by,  §  110,  p.  217. 
Slight  negligence,  effect  of,  §  115,  p.  220. 

Sole  negligence   of   employe,   brakemen   crushed   against  freight 
platform,  §  17,  p.  33. 

flagmen  killed  while  flagging  trains,  §  17,  p.  30. 
Violation  of  rules  as,  §  102,  p.  200. 
COSTS— 

Paupers,  right  to  sue  as,  §  179,  pp.  318,  319. 
COUPLERS— 

Automatic,  Act  governing,  App.  pp.  386-393. 

locomotives,  order  of  Interstate  Commerce  Commission,  App. 

p.  440. 
switch  engines,  order  of  Interstate  Commerce  Commission, 
App.  p.  443. 
Cars,  employe  killed  by,  §  24,  p.  58. 

Defective,  when  evidence  insufficient  to  show,  §  24,  p.  64. 
Interstate  commerce,  employe  engaged  in  coupling  switch  engine 
to  private  car  as  engaged  in,  §  47,  p.  115. 
train  operating  between  intrastate  terminals  containing  inter- 
state cars,  §  28,  p.  69. 
Intrastate  car,  injury  to  brakeman  while  attempting  to  couple 

to  interstate  train,  §  35,  p.  89. 
Locomotives,   specifications  regarding,   order  of  Interstate  Com- 
merce Commission,  App.  pp.  445,  446. 
Uncoupling  levers,  caboose  cars,  App.  pp.  427,  432. 
fl.at  cars,  App.  p.  415. 
gondola  and  hopper  cars,  App.  p.  412. 
order  of  Interstate  Commerce  Commission  affecting,  App. 

pp.  406,  407. 
passenger  cars,  App.  pp.  433,  434,  438, 
road  engines,  App.  p.  440. 
switch  engines,  App.  p.  443. 
tank  cars,  App.  p.  421. 
COUPLING  AIR-HOSE— 

Assumption  of  risk  of  injury  from  kicked  cars,  §  104,  p.  205. 
COURSE  OF  EMPLOYMENT— 

Section  man  warning  of  coUision  as  acting  within,  §  14,  p.  28. 
COURTS— 

Federal,  controlling  effect  of  decisions  on  state  courts,  §  8,  p.  15. 
decisions  control  in  determining  assumption  of  risk,    §  98, 
pp.  193-197. 

damages,  controlling  effect  of,  §  86,  p.  165. 
effect  of  conflict  in  decisions,  §  8,  p.  15. 


INDEX  465 

COUETS— Cont. 

Interstate   commerce,    decisions   erroneous   as   holding   employes 
engaged  in,  §  47,  pp.  114-116. 

decisions  of  state  court  conflicting  with  U.  S.  Supreme  Court, 
§46,  pp.  110-114. 
Jurisdiction  of  state  and  federal  courts,  §§  124-138,  pp.  232-246. 
Eemoval  of  causes  to  federal  court,  prohibited,   §  126,  pp.  233, 
234. 

where  petition  fails  to  state  cause  of  action  under  Federal 

Act,  §  128,  pp.  236,  237. 
where  petition  states  cause  of  action  under  state  law  in  one 
count  and  under  Federal  Act  in  another,  §  127,  pp.  234-236. 
Safety  Appliance  Act,  applicability  of  decisions  construing,  §  50, 

pp.  117-119. 
United  States  Supreme,  jurisdiction  to  review  judgment  of  state 
court,  §  130,  p.  238. 

sufficiency  of  evidence  as  presenting  federal  question,  §  132, 

pp.  239-241. 
sufficiency  of  record  to  present  federal  questions  on  error 
to  state  courts,  §  131,  p.  239. 
CRUSHED  BETWEEN  CABS— 

Switchman  poling  cars,  §  24,  pp.  56,  57. 
CURVES— 

Strain  caused  in  moving  hand  car  from  track  to  avoid  collision 
on,  §  24,  p.  62. 
CUSTOM— 

Warning,  injury  to  track  laborer  by  engine  approaching  without 
warning  in  violation  of  custom,  §  24,  p.  57. 
CUT-OFF— 

Employes  engaged  in  constructing  as  employed  in  interstate  com- 
merce, §  40,  p.  104. 

D 

DAMAGES— 

Aliens,  right  to  recover,  §  83,  pp.  161,  162, 

Contributory  negligence,  apportionment  in  case  of,  §  113,  p.  219. 
instructions,  when  erroneous,   §  118,  pp.   223-226. 
violation  of  safety  acts  as  preventing  diminution  of,  §  111, 
p.  218. 
Death,  abandoned  wife  as  a  dependent,  §  82,  p.  160. 

apportionment  among  beneficiaries,   §§  79,  95,  pp.  153,  189. 
as    involving    federal    question    reviewable    in    U.     S. 

Supreme  Court,  §  135,  p.  243. 
between  mother  and  chUd,  154,  155n. 
when  failure  harmless  error,  §  178,  p.  317, 

Roberts  Liabilities— 30 


466  INDEX 

DAMAGES— Con  t. 
Death — Cont. 

approved  decisions  declaring  true  measure  of,  §  93,  pp.  181- 

188. 
contributions  after  majority,  recovery  independently  of,  §  91, 

p.  179. 
contributions  expected  during  lifetime  of  decedent,  right  to 

recover  for,  §  91,  pp.  177-179. 
expectation  of  pecuniary  assistance,  §  82,  p.  160. 
illegitimate  children,  §  92,  pp.  180,  181. 
instructions,  approved  forms  of,  §  87,  pp.  165-170. 

declaring  true  measure  of  damages,  §  93,  pp.  182-186. 
erroneous,  §  88,  pp.  170-174. 
when  harmless  error,  §  178,  p.  317. 
loss  of  care,  counsel,  training  and  education  by  minors  as 

elements,  §  81,  pp.  158,  159. 
loss  of  potential  advice  and  care  as  elements,  §  78,  p.  152. 
loss  of  society  and  companionship  as  elements,  §  78,  p.  152. 
married  daughter  as  dependent,  §  79,  p.  153. 
measure  of,  §  75,  p.  150. 

death  of  adult  son,  §  80,  pp.  154-156. 
pain  and  suffering,  right  to  recover  for,  §  89,  pp.  174-176. 
right  to  recover  for  prior  to  1910  amendment,  §  84,  pp. 
162,  163. 
pecuniary  benefits,  expectation  of  receiving,  §  91,  p.  179. 
pecuniary  loss  as  dependent  upon  legal  liability  of  decedent 

to  beneficiary,   §  82,  p.   160. 
presumptions   as  to   damages   as  to   children,   §  57,  pp.   151, 

152. 
prospective  gifts,  right  to  recover  for,  §  91,  pp.  177-179. 
recovery  under  both  sections  1  and  9  for,  §  90,  p.  177. 
reduction  for  contributory  negligence,  §  75,  p.  150. 
right  of  estate  of  decedent  to  recover,  §  76,  pp.  150,  151. 
sick  brother  as  dependent,  §  80,  p.  157. 
sister  as  dependent,  §  80,  pp.  157,  158. 
Decisions  of  federal  court,  controlling  effect  of,  §  86,  p.  165. 
Distribution,  state  laws  governing  superseded,  §  94,  pp.  188,  189. 
Excessiveness,  controlling  effect  of  state  laws,  §  9,  p.  16. 
not  reviewable  in  U.  S.  Supreme  Court,  §  138,  p.  245. 
Measure  of,  in  action  by  dependent  relatives,  §  74,  p.  148. 
Parent,  right  to,  where  widow  or  children  survive,  §  73,  p.  147. 
DAMPEE— 

Defective,  causing  fire  on  bridge,  §  22,  p.  50. 
DANGEROUS  POSITION— 

Failure  to  warn  employe  of  danger,  §  24,  p.  59. 
Negligence,  insufficiency  of  evidence  to  show,  §  24,  p.  63. 


INDEX  467 

DEAD  LOCOMOTIVES— 

Watchmen  as  engaged  in  interstate  commerce,  §  45,  p.  110. 
DEATH— 

Administrator,    appointment    not    dependent    upon    existence    of 
other  property,  §  144,  pp.  251,  252. 
right  of  foreign  to  sue,  §  147,  p.  253. 
Aliens,  right  to  recover,  §  83,  pp.  161,  162. 
Beneficiaries,  existence  of,  as  jurisdictional,  §  72,  p.  146. 

in  actions  for  death  under  Employers'  Liability  Act,  §§  71- 

74,  pp.  145-150.  " 
necessity  for  allegation  of  survival  of,  §  157,  pp.  274,  275. 
Children,  necessity  for  allegations  as  to  number  and  age,  §  157, 

p.  275. 
Contributions,   after   attaining  majority,  recovery  independently 
of,  §  91,  p.  179. 

during   lifetime   of   decedent,   right   to   recover   for   loss   of 
expected,  §  91,  pp.  177-179. 
Damages,  action  by  dependent  relative,  §  74,  p.  148. 

apportionment  among  beneficiaries,   §§  79,  95,  pp.  153,  189. 
between  mother  and  child,  154,  155n. 
when  failure  harmless  error,  §  178,  p.  317. 
approved  decisions  declaring  true  measure  of,  §  93,  pp.  181- 

188. 
approved  forms  of  instructions,  §  87,  pp.  165-170. 
expectation  of  pecuniary  assistance,  §  82,  p.  160. 
instructions  declaring  true  measure  of,  §  93,  pp.  182-186. 

erroneous,  §  88,  pp.  170-174. 
loss  of  care,  counsel,  training  and  education  of  minors  as 

elements,  §  81,  pp.  158,  159. 
loss  of  potential  advice  and  care  as  elements,  §  78,  p.  152. 
loss  of  society  and  companionship  as  elements,  §  78,  p.  152. 
measure  of,  §  75,  p.  150. 

death  of  adult  son,  §  80,  pp.  154-156. 
pain  and  suffering,  right  to  recover  for,  §  89,  pp.  174-176. 
right  to  recover  for,  prior  to  1910  amendment,  §  84,  pp. 
162,  163. 
pecuniary  loss  as  dependent  upon  legal  liability  of  decedent 

to  beneficiary,  §  82,  p.  160. 
presumptions  as  to,  in  action  where  widow  and  children  sur- 
vive, §  57,  pp.  151,  152. 
reduction  for  contributory  negligence,  §  75,  p.  150. 
right  of  estate  of  decedent  to  recover,  §  76,  pp.  150,  151. 
right  of  parent  to,  where  widow  or  chUdren  survive,   §  73, 
p.  147. 
Dependent  relatives,  necessity  for  as  condition  to  action,   §  74, 
p.  148. 


468  INDEX 

DEATH— Cont. 

Dependents,  abandoned  wife  as,  §  82,  p.  160. 
married  daughter  as,  §  79,  p.  153. 
sick  brother  as,  §  80,  p.  157. 
sister  as,  §  80,  pp.  157,  158. 
Distribution,  state  laws  governing  superseded,  §  94,  pp.  188,  189. 
Election,  power  to  require  as  to  widow  suing  in  own  name  in  one 

suit  and  as  administratrix  in  another,  §  175,  pp.  307-311. 
Federal  courts,  controlling  effect  of  decisions  on  state  courts,  §  8, 

p.  15. 
Instantaneous,  right  to  recover  under  Sec.  9  of  Act  in  case  of, 

§  85,  pp.  163,  164. 
Liiabilities  growing  out  of,  §  71,  p.  147. 
Negligence,  necessity  that   death  result  from  under  sections   1 

and  9,  §  90,  pp.  176,  177. 
Next  of  kin,  inclusion  of  illegitimates,  §  92,  pp.  180,  181. 
Parties,  actions  under  Employers'  Liability  Act,  §§139-147,  pp. 
246-253. 

right  of  ancillary  administrator  to  sue,  §  142,  p.  250. 
want  of  capacity  in  widow  to  sue  not  waivable,  §  141,  pp. 
248,  249. 
Pecuniary  benefits,  expectation  of  receiving,  §  91,  p.  179. 
Pecuniary  loss,  necessity  for  allegation  showing,  §  158,  pp.  275, 
276. 

necessity  for  showing,  §  57,  pp.  151,  152. 
Prospective  gifts,  right  to  recover  for  loss  of,  §  91,  pp.  177-179. 
Eecovery  under  both  section  1  and  9  for,  §  90,  p.  177. 
Revival  of  actions  commenced  by  employe  during  lifetime,  §  143, 

p.  251. 
State  legislation,  effect  of  Federal  Act  on,  §  7,  p.  11. 
Survival,  rule  prior  to  amendment,  p.  lln. 
DEBRIS— 

Employes  engaged  in  removing  after  fire,  as  employed  in  inter- 
state commerce,  p.  106n. 
DEMURRER  TO  EVIDENCE— 
See  also  Directing  Vekj)ict. 

Contributory  negligence  not  ground  for,  §  116,  p.  221. 
Ruling  on,   as  presenting  federal  question   reviewable  in   U.   S. 

Supreme  Court,  §  132,  p.  240. 
State  law  inapplicable  in  ruling  on,  §  166,  p.  289. 
Sufficiency  of  evidence,  as  determined  by  rulings  of  state  or  fed- 
eral courts,  §  18,  p.  36. 
DEPENDENTS— 

Aliens  as,  §  83,  pp.  161,  162. 

Death  of  adult  child  or  collateral  kindred,  §  80,  pp.  154-158. 


INDEX  469 

DEPENDENTS— Cont. 

Instructions,  approved  forms  of,  §  87,  pp.  165-170. 

erroneous,  §  88,  pp.  170-174. 
Loss  of  care,  counsel,  training  and  education  by  minors  as  ele- 
ments of  damages,  §  81,  pp.  158,  159. 
Necessity  for  existence  of  as  condition  to  action,  §  74,  p.  148. 
DEPOTS— 

See  Stations. 
DERAILMENT- 

Defects  in  wheels  under  state  statute  as  prima  facie  negligence, 

§  24,  p.  60. 
Fireman  jumping  from  engine  in  fear  of,  §  23,  p.  54. 
DERRICKS— 

Boiler  maker  repairing  boiler  on  wrecking  train  as  engaged  in 
interstate  commerce,  §  46,  p.  111. 
DESCENDING  CAR— 

Injury  to  brakeman  striking  coal  chute,  §  14,  p.  28. 
DIRECTED  VERDICT- 

Ruling  on  as  presenting  federal  question  reviewable  in  United 
States  Supreme  Court,  §  132,  p.  240. 
DISTRIBUTION— 

State  laws  governing,  illegitimates,  §  92,  pp.  180,  181. 
superseded,  §  94.  pp.  188,  189. 
DISTRICT  OF  COLUMBIA— 

Application  of  Employers '  Liability  Act  to,  §  70,  p.  144. 
DOORS— 

Insufficient  fastening,  risk  not  assimied,  §  104,  p.  206. 
DRAWBARS— 

Car  repairer  injured  while  repairing,  on  interstate  car,  §  31,  p.  80. 
Interstate  Commerce  Commission,  order  fixing  standard  height 

of,  App.  pp.  395,  396. 
Power  of  Interstate  Commerce  Commission  to  fix  height  of,  App. 

p.  387. 
Standard  height  of,  text  of  statute  authorizing  Interstate  Com- 
merce Commission  to  fix,  App.  p.  392. 
DRINK— 

Injury  to  employe  in  yards  while  returning  after  getting,  p.  25n. 
DROP  PIT— 

Fall  into,  risk  assumed,  §  105,  pp.  210,  211. 

E 
ELECTION— 

Iowa  Statute,  motions  to  elect  under,  §  173,  pp.  302-304. 
Law  governing,  §  173,  pp.  302-304. 

Motion  to  require,  when  should  be  sustained  before  trial,  §  174, 
pp.  304-307. 


470  INDEX 

ELECTION— Cont. 

Simultaneous  proceedings  under  both   State  and  Federal  Acts, 

§  175,  pp.  307-311. 
Stage  of  proceedings   at  which   should  be  sustained,   §  172,  pp. 

300-302. 
State  laws,  controlling  effect  of  in  actions  under  Federal  Act, 

§  9,  p.  16. 
Widow  suing  in  own  name  in  one  suit  and  as  administratrix  in 
another,  power  to  require,  §  175,  pp.  307-311. 
ELECTRICITY— 

Overhead   wire   killing  engineer   returning   from   top   of   tender, 
§  105,  pp.  206,  207. 
EMPLOYES— 

Construction  of  Employers '  Liability  Act  as  to,  §  19,  p.  43. 
Eules  for  determining  engagement  in  interstate  commerce,   §  5, 

p.  8. 
Safety  of,  relation  to  interstate  commerce,  §  5,  p.  9. 
EAIPLOYERS'  LIABILITY  ACT— 

See  Federal  Employees'  Ll&bility  Act. 
EMPTY  CARS— 

Interstate  commerce,  employes  engaged  in  hauling  as  employed 
in,  §  46,  pp.  113,  114. 

trains  hauling  as  engaged  in,  §  62,  p.  133. 
Movement  of,  in  terminal  after  use  in  intrastate  commerce,  §  29, 
p.  72. 
ENGINES— 

See  also  Locomotives. 

Derrick  engine,  boiler  maker  injured  while  repairing,  §  32,  pp. 
82,  83. 
ENGINEERS— 

Clearance  between  ears,  when  risk  not  assumed,  §  104,  pp.  203, 

204. 
Coal,    movement    of    cars    containing    for    purpose    of    fuel    for 

engines,  §  34,  p.  89. 
Collapse  of  bridge,  liability  for  death  of  engineer,  §  23,  p.  50. 
Electric  wire,  contact  with  wire  while  returning  from  top  of  ten- 
der, risk  assumed,   §  105,  pp.   206,  207. 
Glass  lubricator  exploding,  §  24,  p.  57. 
Interstate  commerce,  injury  while  en  route,  §  28,  pp.  69,  70. 

running  light  engine,  engineer  operating  between  intrastate 

terminals,    §  46,   p.    113. 
suflSciency  of  evidence  to  show  engagement  in,    §  170,   pp. 
293-295. 
Pile  driver,  negUgence  of  engineer  of,  as  question  for  jury,  §  23, 
p.  52. 


INDEX  471 

ENGINEEES— Cont. 

Preparing  engine  for  attachment  to  interstate  train,  nature  of 

employment,  §  38,  p.  99. 
Pumping   water   for   use   by   engines,   employment   in   interstate 

commerce,  §  37,  p.  95. 
Stepping  into  roundhouse  pit  after  sleeping  in  engine,  §  14,  p.  26. 
Testing  engine  between  intrastate  terminals,  §  37,  p.  97. 
Water  glass,  assumption  of  risk  of  absence  of,  §  105,  p.  209. 
EQUIPMENT— 

Order  of  Interstate  Commerce  Commission  designating  number, 
dimensions,  location  and  manner  of  application  of  certain,  App. 
pp.  397-466. 
Safety  Appliance  Act,  effect  of  noncompliance  with,  §  21,  p.  47. 
EVIDENCE— 

Burden  of  proof,  propriety  of  instruction  as  to,  on  question  of 

defective  instrumentalities,  §  22,  p.  49. 
Cause  of  action  under  Federal  Act,  no  recovery  under  pleading 
showing  cause  of  action  under  state  law,  §  148,  p.  255. 

recovery  under  state  laws,  harmless  error  when,   §  151,  pp. 
263-268. 
Competency  of  widow  and  beneficiaries  as  witnesses,  law  govern- 
ing, §  165,  p.  169. 
Demurrer  to,  state  law  inapplicable  in  ruling  on,  §  166,  p.  289. 
Interstate  commerce,  insufficiency  to  show  engagement  in,  §  171, 
pp.  295-299. 

judicial  notice  of,  §  47,  p.  116. 

method  of  proving  engagement  in  by  employes  not  directly 

connected  with  movement  of  trains,  §  169,  p.  293. 

necessity  for  proof  showing  use  of  cars  in,  §  32,  p.  81. 

sufficiency  to  show  engagement  in,  §  170,  pp.  293-295. 

Interstate    shipments,    method    of    proving    that    trains    carried, 

§  168,  pp.  290-293. 
Judicial  notice,  geographical  divisions,  §  170,  p.  294. 

railroads  engaged  in  interstate  commerce,  §  148,  p.  256. 
terminus  of  railroad,  §  170,  p.  294. 
Parol,  competency  of  to  show  that  train  carried  interstate  ship 

ments,  §  168,  pp.  290-291. 
Pecuniary  loss  in  case  of  death,  necessity  for  showing,  §  57,  pp 

151,  152. 
Presumptions   as   to   employment   in   intrastate   commerce,    §  47 

p.  116. 
Question  as  to  sufficiency  of  as  sustaining  writ  of  error  by  XJ.  S 

Supreme  Court,  §  132,  pp.  239-241. 
Eeceivers,  proof  of  appointment  and  authority,  §  56,  pp.  126,  127 
Records,  interstate  shipmftnts.  §  167,  pp.  289,  290. 


472  INDEX 

EVIDENCE— Cont. 
Eecords — Cont. 

nature    and    contents    of,    showing    character    of    business 
engaged  in,  §  168,  pp.  292,  293. 
Eules,  controlling  effect  of  state  laws,  §9,  p.  16. 

governing  admission  of,  §  164,  p.  288. 
Statute,  inadmissibility  of  evidence  bringing  case  within  unless 

statute  pleaded,  §  161,  p.  281. 
Variance,  petition  under  state  law  and  evidence  showing  applica- 
tion of  Federal  Act,  §  160,  pp.  277-280. 
EXHAUSTION— 

Fall   from   engine   caused   by   excessive,   continuous  service,   risk 
assumed,  §  105,  pp.  210,  211. 
EXPLOSIONS— 

Glass  on  lubricator,  injuring  engineer,  §  24,  p.  57. 
Jumping  from  train  in  fear  of,  sufficiency  of  complaint,  p.  272n. 
Water  gauge,  approved  form  of  instruction  on  assumed  risk,  §  99, 
p.  197. 
EXPEESS  COMPANIES— 

Agents  as  employes  of  railroad  company,  §  44,  p.  109. 

F 

FALL  FEOM  CAE— 

Baggageman  injured  by  absence  of  steps,  §  23,  p.  53. 
Exhaustion   due   to   excessive,   continuous   service,   risk   assumed, 

§105,  pp.  210,  211. 
Jolt  throwing  employe  from  ladder,  §  24,  pp.  55,  56. 
Striking  switch  stand  close  to  track,  §  24,  p.  55. 
FALLING  OBJECTS— 

Tie  slipping  whUe  being  handled,  when  result  of  accident,  §  24, 

p.  62. 
Timber   thrown   from   train,   employe   injured  whUe  walking   on 
street,  §  39,  p.  103. 
FEDEEAL  COUETS— 

Actions  under  Federal  Act  right  to  bring  in,  §  124,  pp.  232,  233. 
Assumption  of  risk,  controlling  effect  of  decisions  of,  §  98,  pp. 

193-197. 
Conflict  in  decisions,  effect  on  state  courts,  §  8,  p.  15. 
Decisions,  controlling  effect  of  on  state  courts,  §  8,  p.  15. 

controlling  in  determining  negligence,  §  18,  p.  34. 
Jurisdiction  in  general,   §§  124-138,   pp.   232-246. 
Paupers,  right  to  sue  as,   §  179,  pp.  318,  319. 
Eemoval  of  causes  to,  prohibited,  §  126,  pp.  233,  234. 

where  petition  fails  to  set  cause  of  action  under  Federal 
Act,  §128,  pp.  236,  237. 


INDEX  473 

FEDERAL  COURTS— Cont. 

Removal  of  causes  to — Cont. 

where  petition  sets  cause  of  action  under  state  law  in  one 
count  and  under  Federal  Act  in  another,  §  127,  pp.  234-236, 
Res  ipsa  loquitur,  application  of  doctrine  of,  §  22,  p.  48. 
FEDERAL  EMPLOYERS'  LIABILITY  ACT— 
Act  of  1906,  invalidity  of,  §  3,  p.  4. 

liability  under  in  territories,  etc.,  §  3,  p.  4. 

text  of,  App.,  pp.  321,  322. 
Act  of  1908,  extent  of  application  of,  §  1,  p.  1. 

review  of  provisions  of,  §  4,  p.  5. 

text  of,  App.,  pp.  323-325, 

validity  of,  §  4,  p.  5. 
AuUiendments  of  1910,  decisions  inducing,  p.  lln. 

report  of  House  Judiciary  Committee,  App.,  pp.  342-347. 

report  of   Senate  Judiciary  Committee,  App.,  pp.  348-373. 

review  of,  §  6,  p.  10. 

text  of,  App.,  pp.  326,  327. 
Assumption  of  risk  under,  §§  96-108,  pp.  190-215. 
Contracts  forbidden  by,  §§  120-123,  pp.  228-231. 
Contributory  negligence,  effect  of  under,  §§  109-119,  pp.  216-227. 
Counts,  right  to  set  up  cause  of  action  under  both  state  and 

Federal  acts  in  separate  counts,  §  152,  pp.  268-270. 
Death,  beneficiaries  in  actions  for,  §§  71-74,  pp.  145-150. 
Determination  of  liability  under,  according  to  rules  of  state  or 

Federal  courts,  §  18,  pp.  34-42. 
Employes  within,   §§  26-51,  pp.  66-120. 
Evidence  under,  §§  164-171,  pp.  288-299. 

Extent  of  power  exercised  by  Congress  in  passing,  §  5,  p.  8. 
Federal   courts,   controlling  effect  of   decisions   on  state  courts, 

§  8,  p.  15. 
Fellow-servants  causing  injury  not  liable  under  Act,  §  145,  p.  252. 
Ferry  boats,  application  of  Act  to,  §  60,  p.  131. 
Interurban  electric  railroads,  application  to,  §  58,  p.  130. 
Jurisdiction  of  state  and  Federal  courts  under,   §§  124-138,  pp. 

232-245. 
Jury  of  less  than  twelve,  effect  of  state  laws  permitting  verdict 

by,  §  176,  pp.  312-314. 
Lessors  of  railroads,  liability  under,  §  57,  pp.  127-130. 
Limitation  of  liability,  power  of  ship  owners,  §  60,  p.  131. 

power  to  enforce  in  admiralty,  §  60,  p.  131. 
Parties  in  actions  under,  §§  139-147,  pp.  246,  253. 
Passenger  railroads,  application  to,  §  59,  pp.  130,  131. 
Paupers,  right  to  sue  as,  §  179,  pp.  318,  319. 
Pleadings  in  actions  under  Act,   §§  148-163,  pp.  254-287. 
Purpose  of  Act,  §  2,  p.  2. 


474  INDEX 

FEDERAL  EMPLOYERS'  LIABILITY  ACT— Cont. 

Railroads  defined,  §  53,  p.  122. 

Receivers,  application  to,  §  56,  pp.  126,  127. 

Res   adjudicata,  when   judgment   in   action   under   state   law   is, 
§  177,  pp.  314-317. 

Right  to  recover  under,  §  83,  pp.  161,  162. 

Safety  Appliance  Act,  applicability  of  decisions  construing,  §  50, 
pp.  117-119. 

Ships  and  vessels,  application  of  act  to,  §  60,  p.  131. 

Simultaneous  proceedings  under  both  State  and   Federal  Acts, 
§  175,  pp.  307-311. 

State  laws,  effect  on,  §  7,  p.  11. 

Street  railroads,  application  to,  §  61,  pp.  131-133. 

Survival  of  action  as  dependent  upon  death  being  caused  by  neg- 
ligence under  sections  1  and  9,  §  90,  pp.  176,  177. 

Wilful  wrongs,   inapplicability   of  Act  to,   §  25,  p.   65. 
FELLOW-SERVANTS— 

Assault  by,  inapplicability  of  act  to,  §  25,  p.  65. 

Assurance  of  safety,  injury  to  employe  relying  on,   §  24,  p.  56. 

Assurance   that  train   would   move   slowly,   when   not  negligence 
as  to  inexperienced  employe  boarding,  §  24,  p.  61. 

Business   of    employer,    necessity    that   act   be    committed   while 
engaged  in,  §  14,  p.  24. 

Failure  to  adopt  rules,  when  negligence  of  feUow-servant  within 
Act,  §  19,  p.  43. 

Failure  to  flag  train,  liability  of  railroad  for  negligence  of  brake- 
man,  §  23,  p.  51, 

Injury  to  brakeman  returning  from  saloon,  p.  25n, 

Insufficient  assistance,  risk  not  assumed,  §  104,  p.  206. 

Intrastate  employe  injuring  employe  engaged  in  interstate  com- 
merce, §  30,  p.  73. 

right  to  recover  for  negligence  of,  §  20,  p.  44. 

Jumping  from  engine  in  fear  of  derailment,  negligence  of  flag- 
man, §  23,  p.  54. 

Liability  of  negligent  fellow-servant  under  Act,  §  145,  p.  252. 

Negligence  of,  risk  not  assumed,  §  104,  p.  205. 

Ofiicers,  agents  and  employes,  who  included,  §  19,  p.  43. 

Pile  driver,  negligence  of  engineer  of,  as  question  for  jury,  §  23, 
p.  52. 

Section  man  injured,  jumping  from  train  on  warning  of  fore- 
man,  §  14,  p.  28. 

Servants  included  in  provision,  not  limited  to  common  law  desig- 
nation, §  19,  p.  43. 

Sportive  act  of,  causing  injury,  §  14,  p.  25. 

Throwing    timber    from    train,    employe    injured    while    walking 
street,  §  39,  p.  103. 


INDEX  475 

FELLOW-SERVANTS— Cont. 

Warning,  failure  of  conductor  to  warn  porter  that  bridge  was 
not  floored,  as  negligence,  §  23,  p.  53. 
FEREY  BOATS— 

Employers'  Liability  Act,  application  to,  §  60,  p.  131. 
Steam   escaping,   insufficiency   of   evidence   to   show    negligence, 
§  24,  p.  63. 
FIRE— 

Bridge,  destruction  of  supports  by,  §  23,  p.  50. 

employe  killed  by  falling  of  engine  through,  §  22,  p.  49. 
Debris,  employes  engaged  in  removing  after  fire  as  employed  in 
interstate  commerce,  p.   106n. 
FIREMEN— 

Going  to  work,  employment  in  interstate  commerce,  §  39,  p.  100, 
Hauling  coal  between  intrastate  points  for  ultimate  use  on  inter- 
state trains,  p.  296n. 
Injury  on  return  to  work  from  performance  of  personal  errand, 

§39,  pp.   101,  102. 
Interstate  commerce,  engagement  in,  §  28,  p.  69. 
Jumping  from  train  in  fear  of  derailment,  §  23,  p.  54. 
Preparing  interstate  train  for  trip,  §  38,  p.  97. 
Student,  injury  while  boarding  train,  §  24,  p.  61. 
Switching  crew,  when  not  engaged  in  interstate  commerce,  §  33, 

pp.  84-86. 
Switching  intrastate  cars  into  interstate  trains,  §  35,  p.  91, 
FLAGGING  TRAINS— 

Collision   resulting   from   negligence   of   brakeman,   liability   for 

death  of  conductor,  §  23,  p.  51. 
Flagmen  killed  while,  §  17,  p.  32. 
FLAGMEN— 

Bridge  carpenters,  failure  to  protect  by  sending  out  flagman  as 

negligence,  §  23,  p.  54. 
Failure   to   maintain   sufficient   distance   from   repairs   on   track, 

§  23,  p.  54. 
Injury  to,  while  flagging  trains,  §  17,  p.  30. 

Negligence  of,  risk  of  injury  not  assumed  by  conductor,  §  104, 
p.  205, 
FLAT  CARS— 

Appliances  on,  order  of  Interstate  Commerce  Commission  affect- 
ing, App.,  pp.  414,  415. 
FLYING  SWITCH— 

Brakeman  injured  while  setting  out  intrastate  car  from  inter- 
state train,  §  35,  p.  90. 
FOOT-BOARDS— 

Hostler's  helper  injured  while  riding  on  pilot  in  violation  of 
rules,  §  14,  p.  29. 


476  INDEX 

FOOTBOARDS— Cont. 

Eoad  engines,  use  of  in  switching,  without  foot-boards,  as  neg- 
ligence, §  23,  pp.  50,  51. 
Switch  engines,  order  of  Interstate  Commerce  Commission  affect- 
ing, App.,  p.  441. 
Switchmen  injured  by  stepping  on  defective,  §  38,  p.  98. 
FOREMAN— 

Duty  to  anticipate  danger  to  car  repairer  from  switching  oper- 
ation, §  24,  p.  58. 
FREIGHT  CONDUCTORS— 

Interstate  commerce,  employmept  in  while  operating  intrastate 
train,  §  47,  pp.  115,  116. 
FREIGHT  PLATFORM— 

Brakemen  crushed  against,  injury  due  to  sole  negUgence  of,  §  17, 
p.  32. 
FREIGHT  SHED— 

Carpenter  engaged  in  constructing  new  office  in,  as  employed  in 
interstate  commerce,  §  41,  pp.  106,  107. 
FREIGHT  WAY  BILLS— 

Custodian  of,  §  168,  p.  291. 
FUEL— 

Dumping  into  tender,  employes  engaged  in,  §  37,  p.  96. 
Employes  assisting  in  movement  of,  for  engines,  as  engaged  in 

interstate  commerce,  §  37,  p.  96. 
Fireman  hauling  coal  between  intrastate  points  for  ultimate  use 

on  interstate  trains,  p.  296n. 
Oil,  injury  whUe  transporting  from  car  for  use  on  engines,  §  37, 

p.  97. 
Switching  crew  moving,  as  engaged  in  interstate  commerce,  §  34, 

p.  86. 
Switching  into  coal  chutes  of  railroad  company,  employes  en- 
gaged in,  §  37,  p.  96. 

G 

GARDENERS— 

Caring  for  depot  grounds,  employment  in  interstate  commerce, 
§  45,  p.  109. 
GAUGES— 

Instructions,  when  erroneous  as  to  failure  to  guard,  §  12,  p.  21. 
GLASS  LUBRICATOR^ 

Explosion  of,  injuring  engineer,  §  24,  p.  57. 
GOING  TO  WORK— 

Fireman   injured   on   returning  from   personal  errand,   §  39,  pp. 

101,  102. 
Fireman  killed  while  proceeding  to  relieve  interstate  train  crew, 

C  39,  p.  100. 
Switchman  killed  while,  §  33,  p.  83. 


INDEX  477 

GONDOLA  CAES— 

Appliances  on,  App.,  pp.  407-413. 
GRAB  IRONS— 

Text  of  statutes  governing,  App.,  pp.  386-393. 
GUARDS— 

Openings  in  platform,  failure  to  illuminate  and  guard,  §  24,  p.  55. 

H 

HAND  brakes- 
Box  cars  and  other  house  cars,  order  of  Interstate  Commerce 
Commission,  App.,  pp.  398-400. 

Locomotives,  specifications  regarding,  order  of  Interstate  Com- 
merce Commission,  App.,  p.  444. 

Text  of  statute  governing,  App.,  p.  391. 
HAND  CARS— 

Brakes,  failure  to  show  negligence  in  ordering  application  of, 
§  24,  pp.  64,  65. 

Defective  flange,  assumption  of  risk,  §  98,  pp.  195,  196. 

Moving    from    track,    insufficient    assistance,    risk    not    assumed, 
§  104,  p.  206. 

Returning  from   work   on,   employment   in   interstate   commerce, 
§  39,  p.  99. 

Strain  caused  by  moving   from   track  to   avoid  collision,    §  24, 
p.  62. 

Sudden  reduction  of  speed  as  negligence,  §  23,  p.  51. 
HANDHOLDS— 

Caboose  ears,  order  of  Interstate  Commerce  Commission,  App., 
pp.  425-427,  429-432. 

End,  on  switch  engines,  order  of  Interstate  Commerce  Commis- 
sion, App.,  p.  442. 

Flat  cars,  order  of  Interstate  Commerce  Commission,  App.,  pp. 
414,  415. 

Hopper  and  gondola  cars,  on,  App.,  pp.  407-413. 

Horizontal  end,  order  of  Interstate  Commerce  Commission  affect- 
ing, App.,  p.  405. 

Passenger  cars,  on,  order  of  Interstate  Commerce  Commission, 
App.,  pp.  432,  433,  435. 

Pilot  beam  on  road  engines,  order  of  Interstate  Commerce  Com- 
mission, App.,  p.  439. 

Rear  end,  on  road  engines,  order  of  Interstate  Commerce  Com- 
mission, App.,  p.  440. 

Roof,    order    of    Interstate    Commerce    Commission,    App.,    pp. 

403,  404. 

Side,    order    of    Interstate    Commerce    Commission,    App.,    pp. 

404,  405. 

road    engines,    order    of    Interstate    Commerce    Commission, 
App.,  p.  439. 


478  INDEX 

HANDHOLDS— Cont. 
Side — Cont. 

switch  engines,  order  of  Interstate  Commerce  Commission, 
App.,  p.  442. 
Tank  cars,  order  of  Interstate  Commerce  Commission,  App.,  pp. 

419-420. 
Text  of  statute  governing,  App.,  p.  391. 

Vertical  end,  order  of  Interstate  Commerce  Commission,  App., 
p.  406. 
HAND  RAILS— 

Headlights,    order    of    Interstate   Commerce    Commission,    App., 
p.  443. 

specifications  regarding,  order  of  Interstate  Commerce  Com- 
mission, App.,  pp.  445,  446. 
Locomotives,  specifications  regarding,  order  of  Interstate  Com- 
merce Commission,  App.,  p.  444. 
HEADLIGHTS— 

Hand  rails  and  steps,  specifications  regarding,  order  of  Interstate 

Commerce  Commission,  App.,  pp.  445,  446. 
Hand  rails  on  steps,  order  of  Interstate  Commerce  Commission. 

App.,  p.  443. 
Section  man  sweeping  snow  from  switches  killed  by  train  carry- 
ing high  powered,  §  23,  p.  52. 
HEAT— 

Interstate  commerce,  employes  carrying  coal  to  heat  repair  shop 
as  engaged  in,  §  45,  p.  110. 
HEPBURN  AMENDMENT— 

Railroad  defined,  §  53,  p.  122. 
HOPPER   CARS— 

Appliances  on,  order  of  Interstate  Commerce  Commission,  App., 
pp.  407,  408,  410-412. 
HOSTLERS— 

Interstate  commerce,  employment  in,  §  46,  p.  112. 
Walking    through    yards    to    rest    shanty,    injured    while,    §  39, 
p.  102. 
HOSTLER'S  HELPERS— 

Injury  while  riding  on  pilot  in  violation  of  rules,  §  14,  p.  29. 
HOT-BOX— 

Ice,  brakeman  injured  while  carrying  to  cool,  §  37,  p.  97, 
HOURS  OF  SERVICE— 

Act,  text  of,  App.,  pp.  376-378. 

violation,  necessity  for  showing  proximate  cause  of  injury, 
§  13,  p.  23. 
risk  not  assumed,  §  108,  p.  215. 
Injury  caused  by  exhaustion  due  to  excessive,  continuous  service, 
risk  assumed,  §  105,  pp.  210,  211. 


INDEX  479 

HOURS  OF  SERVICE— Cont. 

Records  regarding,  custodian  of,  §  168,  p.  291, 
HOUSE  OF  REPRESENTATIVES— 

Judiciary  Committee,  report  on  Employers'  Liability  Act  of  1908, 

.     App.,  pp.  328-341. 

Report  of  Judiciary  Committee  on  amendments  of  1910,  App., 
pp.  342-347. 
HUSBAND  AND  WIFE— 

Abandoned  wife  as  dependent,  §  82,  p.  160. 

I 

ICE— 

Brakeman  injured  while  carrying  to  cool  hot-box,  §  37,  p.  97. 
Porter    injured    while    carrying   for    water   cooler    on   passenger 
train,  §  37,  p.  94. 
ILLEGITIMATE  CHILDREN— 

Death,  recovery  for,  §  92,  pp.  180,  181. 
INDEMNITY— 

Contracts  exempting  carrier  from  liability  forbidden,  §§  120-123, 
pp.  228-231. 
INFANTS— 

Death,  loss  of  care,  counsel,  training  and  education  by,  as  ele- 
ments of  damages,  §  81,  pp.  158,  159. 

inspection- 
Box  car,  failure  to  inspect  after  roof  had  been  blown  off,  §  23, 

p.  52. 
Conductor  injured  while  inspecting  interstate  train  from  adjoin- 
ing track,  §  38,  p.  98. 
instantaneous  DEATH— 

Right  to  recover  under  Sec.  9  of  the  Act,   §  85,  pp.  163,  164. 
INSTRUCTIONS— 

Assumed  risk,  approved  form  of,   §§  98,  99,  pp.   195-197. 

necessity  for  giving  concrete  instructions,  §  99,  p.  197. 
Based  on  state  laws,  when  erroneous,  §  18,  p.  37. 
Burden  of  proof,  propriety  of,  as  to  defective  instrumentalities, 
§  22,  p.  49. 
when  harmless  error,  §  178,  p.  317. 
Contributory  negligence,  approved  form  of,  §  87,  p.  168. 
when  erroneous,  §  118,  pp.  223-226. 
when  harmless  error,   §  178,  p.  318. 
Damages,  approved  form  of,  §  87,  pp.  165-170. 
erroneous,  §  88,  pp.  170-174. 
when  harmless  error,  §  178,  p.  317. 
Damages  for  death,  correct  instructions  on,  §  93,  pp.  182-186. 

when  erroneous,  §  76,  p.  151. 
Federal  law,  duty  to  follow  in  charging  jury,  §  18,  p.  42. 


480  INDEX 

INSTRUCTIONS— Cont. 

Res  ipsa  loquitur,  propriety  of  instruction  as  to,  §  22,  p.  50. 
Safe  appliances,  when  erroneous  as  to,  §  12,  p.  21. 
INSURANCE— 

Contracts  exempting  carrier  from  liability  forbidden,  §§  120-123, 
pp.  228-231. 
INTERLINE  WAY  BILLS— 

Nature  and  contents  of,  §  168,  p.  293. 
INTERMEDIATE  CARRIERS— 

Intrastate   lines   participating   in   movement   of   interstate   ship- 
ment, §  65,  p.  135. 
INTERSTATE  COMMERCE— 

Among  the  several  states,  meaning  of,  §  5,  p.  9. 
Ballasting  railroad  track,  employment  in,  §  36,  p.  93. 
Beginning  of  interstate  character  of  shipment,  §  64,  p.  134. 
Block   system,  employes   engaged   in   installing  block   system   as 

employed  in,  §  41,  p.  107. 
Boiler  maker  injured  while  repairing  engine  not  in  actual  use  in, 

§  13,  p.  78. 
Brakeman,  moving  interstate  trains,  §  28,  p.  69. 

sufficiency  of  evidence  to  show  engagement  in,  §  171,  p.  298. 
Bridges,  carpenters  working  on  as  employed  in,  §  46,  p.  113. 
Car  checkers,  employment  in  interstate  commerce,  §  42,  pp.  107, 

108. 
Car  repairer,  injured  while  replacing  draw  bar  on  interstate  car, 
§  31,  p.  80. 

employed  on  cars  used  in  both  classes  of  commerce,   §  31, 

p.  77. 
when  not  considered  engaged  in  interstate  commerce,  §  32, 
pp.  80-83. 
Cars   destined   beyond   state,   character   of   employment   of   crew 

operating  between  intrastate  terminals,  §  28,  p.  69. 
Carrying  bolts  for  repair  of  bridge,  injury  to  employe  engaged 

in,  §  30,  p.  74. 
Coal,  dumping  into  tender,  employes  engaged  in,  §  37,  p.  96. 
Coal  chutes,  employes  engaged  in  switching  coal  into,  §  37,  p.  96. 
Commerce,  what  embraced  in,  §  5,  p.  8. 

Company  property,  trains  hauling  as  engaged  in,  §  62,  p.  133. 
Congress,  effect  of  failure  to  regulate,  §  7,  p.  14. 

extent  of  power  over,  §  5,  p.  9. 
Connection  with  employment,  §  37,  p.  95, 

as  test  of  engagement  in,  §  30,  pp.  74,  75. 
Construction  work,  employes  engaged  in,  as  employed  in  inter- 
state commerce,  §  40,  pp.  103-106. 
Continuous  carriage,  what  constitutes  rendering  shipment  inter- 
state commerce,  §  69.  pp.  141,  142. 


INDEX  481 

INTERSTATE  COMMERCE— Cont. 

Courts,   decisions   in   conflict   with  U.   S.   Supreme   Court,    §§  46, 

47,  pp.  110-116. 
Debris,  employes  engaged  in  removing  after  fire  as  employed  in, 

p.  106n. 
Employes  engaged  in,   §§  26-51,  pp.   66-120. 

both  interstate  and  intrastate  commerce,  §  27,  p.  68. 
injury  by  intrastate  train,  right  of  recovery,  §  20,  p.  45. 
moving  freight  to  intrastate  station  destined  beyond  state, 
§  28,  p.  69. 
Employers '  Liability  Act,  applicable  only  to  employes  engaged 

in,  §  27,  p.  67. 
Empty  cars,  employes  hauling  as  engaged  in,  §  46,  p.  114. 

moving  in  terminal  after  use  in  intrastate  commerce,   §  29, 

p.  72. 
returned    from    interstate    trip,    car    repairer    injured    while 

working  on,  §  32,  p.  80. 
trains  hauling  as  engaged  in,  §  62,  p.  133, 
Ending  of  interstate  character  of  shipment,  §  64,  p.  134. 
Engine  repairer  when  not  considered  engaged,  §  32,  pp.  80-83. 
Engineer   falling  into  roundhouse  pit  after   sleeping  in  engine, 

§  14,  p.  26. 
Evidence  as  to  use  of  car  in,  necessity  for,  §  32,  p.  81. 

insufficiency  to  show  engagement  in,  §  171,  pp.  295-299. 
method  of  proving  engagement  in,  §  168,  pp.  290-293. 

by  employes  not   directly  connected  with  movement  of 
trains,  §  169,  p.  293. 
sufficiency  to  prove  engagement  in,  §  170,  pp.  293-295. 
Falling  into  cinder  pit  while  seeking  tool  boy,  p.  95n. 
Firemen  on  switching  crews,  when  not  engaged  in  interstate  com- 
merce, §  33,  pp.  84-86. 
Firing  engine  preparatory  to  interstate  trip,  §  38,  p.  97. 
Freight  conductors  as  engaged  in,  while  on  intrastate  train,  §  47, 

pp.  115,  116. 
Freight  shed,  carpenter  engaged  in  constructing  new  office  in,  as 

employed  in,  §  41,  pp.  106,  107. 
Fuel,  movement  of  cars  containing,  for  engines  as,  §  34,  p.  87. 
Gardeners,  employment  in,  §  45,  p.  109. 

Going  to  work,  fireman  injured  on  returning  to  work  from  per- 
sonal errand,  §  39,  pp.  101,  102. 

fireman  killed  while  proceeding  to  relieve  interstate  crew, 
§  39,  p.  100. 
Hauling  coal  between  intrastate  points  for  ultimate  use  on  inter- 
state trains,  p.  296n. 
Hostlers,  emploj-ment  in,  §  46,  pp.  112,  114. 
Boberts  LiablUtle&— 3 1 


482  INDEX 

INTERSTATE  COMMERCE— Cont. 

Hot-box,  injury  to  brakeman  while  carrying  ice  to  cool,  §37, 

p.  97. 
Ice,  injury  to  brakeman  while  carrying  to  cool  hot-box,   §  37, 
p.  97. 

porter  injured  while  lifting  for  water  coolers,  §  37,  p.  94. 
Indiscriminate  use  in  both  classes  of  commerce,   §§  30,  31,  pp. 
76,  77. 

hostlers  working  on  engine  returned  from  intrastate  trip, 

§46,  p.  114. 
roundhouse  employe  injured,  §  32,  p.  81. 
switching,   §33,  pp.  83,  84n. 
Injury  while  en  route,  application  of  act,  §  28,  pp.  69,  70. 
while  replacing  drawbar  on  interstate  car,  §  31,  p.  80. 
Inspecting  engine  preparatory  to  interstate  trip,  §  38,  p.  97. 
Inspection   of  interstate  train   from  adjoining  track,   conductor 

injured,  §  38,  p.  98. 
Instrumentalities  of  commerce,  necessity  for  use  at  precise  time 
of  injury,  p.  71n. 

probability  of  interstate  use  as  affecting  character  of  employ- 
ment, p.  71n. 
Interurban  electric  railroads,  engagement  in,  §  58,  p.  130. 
Inta-astate  carrier,  acceptance  of  shipments  to  or  from  foreign 
state,  §  67,  p.  136. 

participating    in    movement    of    interstate    shipments,    §  65, 
p.  135. 
Intrastate   commerce,   presumption   as  to  employment   in,    §  47, 

p.  116. 
Intrastate  employe,  right  to  recover  for  negligence  of,  §  20,  p.  44. 
Intrastate   terminals,    passage   through    another   gtate   en    route 
between,  §§  31,  66,  pp.  78,  135. 
train   operating   between    containing   interstate   cars,    §  28, 
p.  69. 
Intrastate  train  injuring  an  employe  engaged  in,  §  30,  p.  73. 
injuring  track  walker  on  track  used  by  both  intra  and  inter- 
state trains,  §  36,  p.  93. 
Iron  workers  repairing  used  tracks  indiscriminately  in  both  intra 

and  interstate  commerce,  §  30,  p.  73. 
Judicial  notice  of  engagement  in,  §  47,  p.  116. 
Local  bUls  of  lading,  transportation  through  state  on,  as  affecting 

interstate  character  of  trafl&c,  §  69,  pp.  142,  143. 
Lodging  roads,  engagement  in  interstate  commerce,  §  54,  pp.  124, 

125. 
MaU,  track  laborer  injured  while  proceeding  to  get  camp  mail, 
§  39,  pp.  102,  103. 


INDEX  483 

INTERSTATE  COMMERCE— Cont. 

Making  up  interstate  train,  injury  by  stepping  ou  defective  foot- 
board, §  38,  p.  98. 
Number  of  railroad  employes  engaged  in,  §  1,  p.  2. 
Oil,  injury  while  transporting  from  car  for  use  on  engines,  §  37, 

p.  97. 
Oiling  engine  preparatory  to  interstate  trip,  §  38,  p.  97. 
Passenger  trains,  when  engaged  in,  §  38,  p.  94. 
Personal    errands,    injury    to    employe    while    returning    from, 

p.  25n. 
Pleading,    insufficiency    of    allegation    to    show    engagement    in, 
§  156,  p.  273. 
necessity  for  alleging  both  employe  and  railroad  to  have  been 

engaged  in,  §  156,  p.  273. 
necessity  for  showing  engagement  in,  §  148,  pp.  254-256. 
necessity  that  defendant  plead  Act  to  defeat  recovery  under 

state  law,  §  161,  p.  280. 
right  to  allege  engagement  in,  in  answer,  §  159,  p.  277. 
sufficiency   of   allegations   as   to   engagement   in,    §  155,   pp. 
271-273. 
Preparing  interstate  trains  for  movement,  §  38,  pp.  97-99. 
Private  car,  switching  crew  coupling  switch  engine  to  as  employed 

in,  §  47,  p.  115. 
Pullman  employes  as  engaged  in,   |43,  pp.   108,   109. 
Pumping  water  for  use  by  engines,  employment  in,  §  37,  p.  95. 
Questions  for  jury,  §  51,  p.  119. 

Railroads,  instances  showing  engagement  in,   §  63,  pp.  133,  134. 
engaged  indiscriminately   in  interstate  and   intrastate   com- 
merce, §  30,  p.  72. 
general  rule,  §  52,  pp.  121,  122. 
proof  of  engagement  in  interstate  commerce  insufficient  to 

show  employment  of  servant  in,  §  55,  p.  126. 
proof  that  servant  was  engaged  in  interstate  commerce  suffi- 
cient, §  55,  pp.  125,  126. 
Rebuilding,  employes  engaged  in  as  employed  in  interstate  com- 
merce, §  41,  pp.  106,  107. 
Records,  evidence  of  interstate  shipments,  power  of  Interstate 
Commerce  Commission  as  to,  §  167,  pp.  289,  290. 
production  by  subpoena  duces  tecum,   §  168,  p.  293. 
Relaying  rails  on  switch  track,  §  36,  p.  94. 
Repair  shop,  employes  carrying  coal  to  heat,  as  engaged  in,  §  45, 

p.  110. 
Repairs,  employes  engaged  in  as  employed  in  interstate  commerce, 
§  41,  pp.  106,  107. 
track  laborers  repairing  track  as  engaged  in,  §  46,  p.  111. 
unloading  new  rails  for  purpose  of,  §  46,  p.  112. 


484  INDEX 

INTERSTATE  COMMERCE— Cont. 

Reshipment  from  point  of  delivery  as  changing  interstate  charac- 
ter of  traffic,  §  68,  p.  138. 

when   does  not  change  interstate  character  of  traffic,   §  69, 
pp.  141-143. 
Returning   from   work,   employe   injured   while   riding   home   on 
train,  §  39,  p.  103. 

on  hand  car,  §  39,  p.  99. 
Returning  on  pass,  brakeman  injured,  §  39,  p.  102. 
Roundhouse,  employes  engaged  in  removing  debris  after  fire  as 
employed  in  interstate  commerce,  p.  106n. 

employes  injured  while  repairing  engine,  §  31,  p.  80. 
Rules  of  determining  employment  in,  §  5,  p.  8. 
Safety   of   railroad   employes,   relation   to    interstate   commerce, 

§  5,  p.  9. 
Section  man  jumping  from  train  in  belief  of  imminence  of  col- 
lision, §  14,  p.  28. 
Setting    out    intrastate    car    from    interstate    train,    brakeman 

injured,  §  35,  p.  90. 
Shipments  between  intrastate  terminals  passing  through  another 
state  in  transit,  §  66,  p.  135. 

interstate  character  of  single  shipment  as  determining  nature 
of  employment,  §  27,  p.  68. 
Sidetrack,    section    man    placing    rail   in    as    employed    in,    §  36, 
p.  93. 

setting  out  intrastate  cars  on,  where  train  contained  inter- 
state shipments,   §  35,  p.  91. 
Signal  service,  telegraph  linemen  as  employed  in,  §  45,  p.   110. 
Sleeping  car  employes  as  engaged  in,  §  43,  pp.  108,  109. 
Sleeping  in  bunk  car,  injury  to  employe  while,  §  14,  p.  25. 
Snow,  section  man   killed  while   sweeping  from   switches,    §  36, 

p.  93. 
Sportive  act  of  fellow-servant  injuring  employe,  §  14,  p.  25. 
Street,  employe  injured  by  timber  thrown  from  train  while  walk- 
ing on,  §  39,  p.  103. 
Switches,  employe  injured  while  repairing,  §  20,  pp.  45,  46. 

employe  working  on,  as  engaged  in,  §  46,  p.  112. 
Switching   crews,   alternately  engaging   in   intrastate   and   inter- 
state commerce,  §  29,  pp.  71,  72. 

movement  of  intrastate  cars  into  or  out  of  interstate  trains, 

§  35,  pp.  88-92. 
test   for    determining   engagement   in    interstate    commerce, 

§  33,  pp.  83-86. 
when  considered  engaged  in,  §  24,  pp.  86-88. 
Telegraph    linemen,    employment    in    interstate    commerce,    §  45, 
p.  110. 


INDEX  485 

INTEESTATE  COMMERCE— Cont. 

Test  for  determining  employment  in,  §  30,  pp.  74,  75. 

Tests,  injury  to  engineer  while  testing  engine  between  intrastate 

terminals,  §  37,  p.  97. 
Through  shipments,  what  constitute,  §  69,  pp.  141,  142. 
Time,  place  and  cause  of  injury  as  affecting,   §  14,  p.  24. 
Tobacco,  employes  engaged  in  loading  on  trains,  §  37,  p.  97. 
Walking    through    yards   to    rest    shanty,    hostler    injured,    §  39, 

p.  102. 
Watchman  on  dead  locomotive  as  employed  in,  §  45,  p.  110. 

sufficiency  of  evidence  to  show  engagement  in,  §  171,  p.  298. 
Wrecking  train,  boiler  maker  engaged  in  repairing  derrick  boiler 

on,  as  employed  in,  §§32,  46,  pp.  82,  83,  111. 
Yard  clerks,  employment  in,  §  42,  pp.  107,  108. 
INTERSTATE  COMMERCE  ACT— 

Construction  with  Safety  Appliance  Act,  §  53,  p.  123. 
INTERSTATE  COMMERCE  COMMISSION— 

Brake  steps,  order  regarding,  App.  pp.  400-401. 

Caboose  cars,  equipment  on,  order  affecting,  App.  pp.  424-432. 

Drawbars,  order  fixing  standard  height  of,  App.  pp.  395,  396. 

text  of  statute  giving  authority  to  fix  height  of,  App.  p.  392. 
Flat   cars,  equipment   on,   orders   regarding,   App.  pp.   414,   415. 
Gondola  cars,  equipment  of,  order  regarding,  App.  p.  413. 
Hand  brakes  on  box  and  other  house  cars,  App.  pp.  398-400. 
Handholds,  horizontal  end,  order  affecting,  App.  p.  405. 
roof,  order  affecting,  App.  pp.  403,  404. 
side,  order  affecting,  App.  pp.  404,  405. 
vertical  end,  order  affecting,  App.  p.  406. 
Hopper  cars,  equipment  of,  order.s  regarding,  App.  p.  413. 
Ladders,  end,  clearance,  order  affecting,  App.  pp.  402,  403. 

order  regarding,  App.  pp.  402,  403. 
Locomotives,   road  service,  order  affecting  equipment  on,   App. 
pp.  438-440. 

specifications    common    to    all,    order    regarding,    App.    pp. 
444-446. 
Passenger  cars,  equipment  on,  App.  pp.  432-438. 
Power  brakes,  order  fixing  minimum  percentage  of,  App.  p.  394. 
Records   of   interstate   shipments,    power   to   prescribe   for,   etc., 

§  167,  pp.  289,  290. 
Running  boards,  order  regarding,  App.  p.  401. 
Safety  appliances,   order   designating  number,   dimensions,   loca- 
tion and  manner  of  application  of  certain,  App.  pp.  397-446. 
regulations,  order  extending  time,  App.  pp.  447-449. 
text  of  statute  giving  power  to  designate,  App.  p.  391. 
Sill  steps,  order  regarding,  App.  pp.  401,  402. 
Switch  engines,  appliances  on,  order  aft^ecting,  App.  pp.  441,  443. 


486  INDEX 

INTERSTATE  COMMERCE  COMMISSION— Cont. 

Tank  cars,  equipment  of,  order  affecting,  App.  pp.  415-424. 

Tenders,  type  of,  specifications  regarding,  App.  p.  444. 

Uncoupling  levers,  App.  pp.  406,  407. 
INTERSTATE  SHIPMENTS— 

Method  of  proving  that  trains  carried,  §  168,  pp.  290-293. 
INTERURBAN  ELECTRIC  LINES— 

Employers '  Liability  Act,  application  to,  §  58,  p.  130. 
INTRASTATE  CARRIERS— 

Acceptance   of   freight   for   transportation   to    or    from   foreign 
state,  §  67,  p.  136. 
INTRASTATE  COMMERCE— 

Employes  engaged  in,  remedy  of,  §  49,  pp.  116,  117. 
right  to  recover  for  negligence  of,  §  20,  p.  44. 

Employes,  when  engaged  in,  §  29,  p.  70. 

Employers  engaged  in  both  interstate  and  intrastate  commerce, 
§  27,  p.  68. 

Engineer   injured   whUe   testing   engine   between    intrastate   ter- 
minals, §  37,  p.  97. 

Injury  while  engaged  in,  law  governing  remedy,  §  29,  p.  70. 

Intermediate    intrastate    carrier    participating    in    movement    of 
interstate  shipment,  §§  6.5,  67,  pp.  135,  136. 

Interstate  shipments  on  train  as   determining  character  of  em- 
ployment, §  27,  p.  68. 

Intrastate  terminals,  trains  between,  containing  interstate  ship- 
ments, §  28,  p.  70. 

Movement   of   empty   passenger    cars   in    terminal    after   use    in 
intrastate  commerce,  §  29,  p.  72. 

Movement  of  freight  to  intrastate  station  destined  beyond  state, 
§  28,  p.  69. 

Presumptions  as  to  employment  in,  §§  47,  48,  p.  116. 

Private  ear,  switching  crew  coupling  switch  engine  to  as  engaged 
in,  §47,  p.   115. 

Questions  for  jury,  §  51,  p.  120. 

Remedy  of  employes  injured  while  engaged  in,  §  1,  p.  2. 

Reshipment  from  point  of  delivery  as  changing  interstate  char- 
acter of  traffic,  §  68,  p.  138. 

Switching  crews  alternately  engaged  in  intrastate  and  interstate 
commerce,  §  29,  pp.  71,  72. 

Switching  crews  moving  intrastate  cars  into  or  out  of  interstate 
trains,  §  35,  pp.  88-92. 

Terminals  in  same  state,  trains  containing  cars  destined  beyond 
state,  §  28,  p.  69. 

Train   engaged   in,    injuring   interstate   employe,    §§  20,   30,   pp. 
45,  73. 

Way  car  and  engine,  when  engaged  in,  p.  71n. 


INDEX  487 

IN  WHOLE  OR  IN  PART— 

Liability  for  injury  arising  from  concurrent  causes,  §  15,  p.  30. 
IRON  WORKERS— 

Repairing  bridges,  as  engaged  in  interstate  commerce,  §  30,  p.  73. 

J 

JERKS   AND  JOLTS— 

Employe  thrown  from  car  ladder  by,  §  24,  pp.  55,  56. 
JUDGMENT— 

Res  adjudicata,  when  suit  under  state  law  is,  §  177,  pp.  314-317. 
JUDICIAL  NOTICE— 

Interstate  commerce,  when  taken  of  engagement  in,  §  47,  p.  116, 
JUDICIARY  COMMITTEE— 

Amendments    of    1910,    report    of    House    Committee,    App.   pp. 
342-347. 

report   of    Senate   Committee,   App.   pp.    348-373. 
Report  of   House   on  Employers'   Liability   Act  of   1908,   App. 
pp.  328-341. 
JUMPING  FROM  TRAIN— 

Fear  of   derailment,   fireman   injured,    §  23,   p.   54. 
Fear  of  explosion,  sufficiency  of  complaint,  p.  272n. 
Section   man   injured   in  belief  of  imminence   of  collision,    §  14, 
p.  28. 
JURISDICTION— 

Beneficiary,   existence   of   jurisdictional,    §  72,   p.    146. 
State  courts,  rule  prior  to  amendment,  p.  lln. 
JURY— 

State  laws   permitting  verdicts  by  less  than   twelve,   effect  of, 
§  176,  pp.  312-314. 

K 

KICKING  CARS— 

Absence  of  lights  or  warning  as  negligence,   §  24,  p.  56. 
Car  repairer  injured,   §  31,  p.  79. 

Coupling  air-hose,  risk  of  injury  not  assumed,  §  104,  p.  205. 
Fireman  killed  while  crossing  tracks,  §  39,  p.   100. 

L 

LABORERS— 

Interstate  commerce,  carrying  coal  to  heat  stoves  in  repair  shop, 

§  45,  p.  110. 
Sportive  act  of  feUow-servant  injuring,  §  14,  p.  25. 
LADDERS— 

Caboose  cars,  order  of  Interstate  Commerce  Commission,   App. 

pp.  425,  429. 
End,  clearance,  order  of  Interstate  Commerce  Commission,  App. 
pp.  402,  403. 


488  INDEX 

LADDEES— Cont. 

Hopper  and  gondola  cars,  on,  App.  pp.  407-413. 

Interstate    Commerce    Commission,    order    regarding,    App.    pp. 

402,  403. 
Jolt  of  train  throwing  employe  from,  §  24,  pp.  55,  56. 
Tank  ears,  order  of  Interstate  Commerce  Commission  affecting, 

App.  pp.  417,  419. 
Text  of  statute  governing,  App.  p.  391. 
LAST  CLEAE  CHANCE— 

Injury  to  one  negligently  placing  himself  in  position  of  peril, 
§  18,  p.  42. 
LESSOES— 

Liability  under  Employers '  liability  Act,  §  57,  pp.  127-130. 
Parties,  when  may  be  joined  as  defendant,  §  146,  pp.  252,  253. 
LEVEES— 

Uncoupling,  caboose  cars,  order  of  Interstate  Commerce  Commis- 
sion, App.  pp.  427,  432. 

flat  cars,  order  of  Interstate  Commerce   Commission,  App. 

p.  415. 
gondola  and  hopper  ears,  App.  p.  412. 
order  of  Interstate  Commerce  Commission  affecting,  App.  pp. 

406,  407. 
passenger   cars,   order   of   Interstate   Commerce   Commission, 

App.  pp.  433,  434,  438. 
road    engines,    order    of    Interstate    Commerce    Commission, 

App.  p.  440. 
switch  engines,  order  of  Interstate  Commerce  Commission, 

App.  p.  443. 
tank  cars,  order  of  Interstate  Commerce  Commission,  App. 
pp.  417,  421,  424. 
LICENSEES— 

Eelation    as    to    student    brakeman    receiving    no    compensation 
agreeing  to  be  considered  as  licensee,  §  14,  p.  28. 
LIGHT  ENGINE— 

Engineers    operating    between    intrastate    terminals    as    engaged 
in  interstate  commerce,  §  46,  p.  113. 
LIGHTS— 

Car  repairer  killed  by  engine  approaching  without  warning  or 

lights,  §  24,  p.  59. 
Failure  to  Uluminate  opening  in  platform  as  negligence,   1 24, 

p.  55. 
Kicking  cars  without,  §  24,  p.  56. 
LIMITATION  OF  ACTIONS— 

Aider  of  defective  statement  of  cause  of  action  by  answer  filed 

after  expiration  of  period  of,  §  150,  p.  263. 
Amendment   of   pleading  after   expiration  of  period  of,   §  162, 
pp.  281-284. 


INDEX  489 

LIMITATION  OF  ACTIONS— Cont. 
Amendment — Cont. 

when  not  allowed,  §  163,  pp.  285-287. 
Pleading,  necessity  for,  §  129,  pp.  237,  238. 
Provisions  limiting,  application  of,  §  129,  p.  237. 
Eeview  of  text  of  statute  as  to,  §  129,  p.  237. 
LIMITATION  OF  LIABILITY— 

Ship  owners,  powers  as  to,  §  60,  p.  131. 
LINEMEN— 

Interstate  commerce,   method  of  proving  engagement  in,   §  169, 
p.  293. 
LOADING  FREIGHT— 

Student  brakeman  helping  in,  as  an  employe,  §  14,  p.  28. 
LOCOMOTIVE   ASH   PAN   ACT— 

Text  of,  App.  pp.  374,  375. 
LOCOMOTIVES— 

Appliances,    extension    of    time    for    compliance    with    order    of 

Interstate  Commerce  Commission,  App.  pp.  447-449. 
Boiler  Inspection  Act,  App.  pp.  379-385,  450. 
Boiler  maker  injured  while  repairing  engine  not  in   actual  use 

in  interstate  commerce,  §  31,  p.  78. 
Brakes,  text  of  statutes  governing,  App.  pp.  386-393. 
Dead,  watchman  as  engaged  in  interstate  commerce,  §  45,  p.  1101 
Engineer  killed  on  stepping  into  pit  after  sleeping  in,  §  14,  p.  26 
Falling  through  bridge,  engineer  killed,  §§  22,  23,  pp.  49,  50. 
Footboard,  use  of  without,  in  switching  as  negligence,  §  23,  pp 

50,  51. 
Gauges,  when  instructions  as  to  duty  to  guard  erroneous,   §  12 

p.  2L 
Indiscriminate  use  in  both  classes  of  commerce,  §  31,  pp.  77,  78 
Leaking  steam  preventing  view  of  track,  §  104,  p.  205. 
Light,  engineer  running  between  intrastate  terminals,  §  46,  p.  113 
Preparing  for  attachment  to  interstate  train,  engineer  injured 

§  39,  p.  99. 
Preparing  for  interstate  trip,  fireman  injured  while,  §  38,  p.  97 
Eeturn  from   interstate  trip,  roundhouse  employe  injured,    §  32 

p.  81. 
Eoad  service,  appliances  on,  order  of  Interstate  Commerce  Com 

mission,  App.  pp.  438-440. 
Switching,   appliances   on,   order   of   Interstate   Commerce    Com 

mission,  App.  pp.  441,  443. 
Specifications  common  to  all,  order  of  Interstate  Commerce  Com 

mission,  App.  pp.  444-446. 
Testing    between    intrastate    terminals,    engineer    injured,    §  37 
p.  97. 
LOGGING  EOADS— 

Employers '  Liability  Act,  application  to,  §  54,  pp.  124,  125. 


490  INDEX 

LOOKOUT— 

Burning  bridge,  employe  killed  by  fall  of  engine  through,  §  22, 

p.  49. 
Failure  to  see  brakeman  sleeping  on  track,  as  negligence,  §  18, 

p.  41. 
Switchman    killed    while   walking   on    track,    by    slowly   moving 
engine,  §  24,  p.  55. 
LORD  CAMPBELL'S  ACT— 
Analogy  to,  §  91,  p.  177. 
LUBRICATOR— 

Explosion  of  lubricator  injuring  engineer,  §  24,  p,  57. 

M 

MAIL— 

Track  laborer  injured  while  proceeding  to  get  camp  mail,  §  39, 
pp.  102,  103. 
MASTER  AND  SERVANT— 

Assumption  of  risk,  see  Assumption  of  Risk. 
Commencement  and  termination  of  relation  as  determining  em- 
ployment in  interstate  commerce,  §  39,  p.  100. 
Existence   of   relation   as   applied   to   servant   receiving  no   com- 
pensation, §  14,  p.  28. 
Express  agents  as  employes  of  railroads,  §  44,  p.  109. 
Fellow-servants,  see  Fellow-Servants. 
Necessity  for   existence   of  relation  between  employes   of  lessee 

and  lessor  of  railroad,  §  57,  pp.  127-130. 
Pullman  porters  as  employes  of  railroad,  §  43,  p.  109. 
Relation   of   as   existing  while   employes   going   to   or  returning 
from  work,  §  39,  pp.  99-103. 
MASTER  MECHANIC— 

Personal  liability  for  negligence,  §  145,  p.  252. 
MOTORMEN— 

Derailment,  inapplicability  of  state  laws  making  defect  in  wheels 
prima  facie  negligence,  §  24,  p.  60. 
MOVING  TRAIN— 

Brakeman  injured  in  boarding,  failure  to  adopt  rules  requiring 
stopping  as  negligence,  §  19,  p.  43. 

N 
NATHAN  LUBRICATORS— 

Explosion  of,  injuring  engineer,  §  24,  p.  57. 
NAVIGATION— 

See  Shipping,  Vessels. 
NEGLIGENCE— 

Assurance  as  to  speed,  when  not  negligence  as  to  fellow-servant 
getting  thereon,  §  24,  p.  61. 


INDEX  491 

NEGLIGENCE  — Cont. 

Assurance  of  safety,  injury  to  employe  relying  on,  §  24,  p.  56. 
Box  car,  failure  to  inspect  after  blowing  off  of  roof,  §  23,  p.  52. 
Boxes  on  platform,  steps  on  car  torn  off  by  striking,  §  23,  p.  53. 
Bridge,  engineer  killed  by  collapse  of,  §  23,  p.  50. 
Cause  of  injury,  necessity  for  evidence  to  prove,  §  24,  p.  63. 
Cinder  pile  near  track,  when  negligence,  §  24,  p.  55. 
Comparative,  distinction  between  Georgia  rule  and  Federal  Act, 

§  114,  p.  220. 
Concurrent  cause,  liability  for  injury  resulting  from,  §  15,  p.  30. 
Contributory,  damages  not  diminished  by  where  Federal  Safety 
Acts  violated,  §  111,  p.  218. 
defined,  §  112,  p.  218. 
effect  of  slight,  §  115,  p.  220. 
effect  where  sole  cause  of  injury,  §  117,  p.  222. 
instructions,  approved  form  of,  §  87,  p.  168. 

when  erroneous,  §  118,  pp.  223-226. 
necessity  that  negligence  proximately  contribute  to  injury, 

§  115,  p.  220. 
not    ground    for    demurrer    to    evidence    or    nonsuit,    §  116, 

p.   221. 
pleading,  necessity  for  determined  by  state  law,  §  119,  pp. 

226,  227. 
recovery  not  defeated  by  gross  negligence  of  employe,  though 

defendant 's  negligence  slight,  §  116,  p.  221. 

right  of  recovery  not  barred  by,  §  110,  p.  217, 

when  instructions  harmless  error,  §  178,  p.  318. 

Decisions  of  federal  courts  as  controlling,  §  18,  p.  34. 

Derailment,  necessity  for  showing  negligence,   §  24,  p.  60. 

Effect  of  employe's   negligence  where   defendant's  act  part   of 

causation,  §  16,  p.  31. 
Employe,  casualties  due  to  sole  negligence  of,  §  17,  p.  32. 

sole   negligence,   brakemen   crushed   against  platform,    §  17, 
p.  33. 
flagmen  killed  while  flagging  trains,  §  17,  p.  30. 
Employer,  common  law  rule  adopted,  §  12,  p.  19. 
provisions  as  to  reviewed,  §§  10,  11,  pp.  18,  19. 
violation  of  rules  regulating  speed  and  signals,  §  18,  p.  41. 
what  must  be  shown,  §  12,  p.  20. 
Fall   of   engine,    insufficiency   of   evidence   to    show   negligence, 

§  24,  p.  60. 
Falling   through   bridge,   failure   of   conductor   to   warn    porter, 

§  23,  p.  53. 
Federal  courts,  controlling  effect  of  decisions  on  state  courts, 

§  8,  p.  15. 
Fellow-servants  not  liable  for  negligence  under  act,  §  145,  p.  252. 


492  INDEX 

NEGLIGENCE— Cont. 

Flagging  trains,  failure  of  brakeman,  causing  rear  end  collision, 

§  23,  p.  51. 
Flagman,    failure    to    protect   bridge    carpenters    as    negligence, 

§  23,  p.  54. 
Gross,  effect  of,  on  recovery,  where  defendant 's  negligence  slight, 

§  116,  p.  221. 
Hand  cars,   sudden   reduction   of   speed   causing   collision,    §  23, 

p.  51. 
Intrastate  employe,  right  to  recover  for  negligence  of,  §  20,  p.  44. 
Jolts,  employe  thrown  from  car  ladder  by,  §  24,  pp.  55,  56. 
Kicking  cars  without  lights  or  warning,  §  24,  p.  56. 
Last  clear  chance,  application  of  doctrine  of,  §  18,  p.  42. 
Lights,  moving  of   engine   in  yards  without  warning  or  lights, 

§  24,  p.  59. 
Lookout,  injury  to  brakeman  while  sleeping  on  track,  §  18,  p.  41. 
Necessity  for  showing  to  hold  employer,   §  12,  p.   22. 
Obsolete  appliances,  furnishing  engines  with,  §  24,  p.  57. 
Openings  in  platform,  failure  to  illuminate  and  guard,  §  24,  p.  55. 
Pleading,  sufficiency  of  determined  by  state  laws,  §  154,  p.  271. 
Poling  cars,  switchman  killed,  §  24,  pp.  56,  57. 
Presumption  of,  when  state  laws,  as  to  inapplicable,  §  18,  p.  37. 
Proximate  cause,  necessity  for  proving  employer's  as,  §  13,  p.  23. 
Ees  ipsa  loquitur,  application  of  doctrine  of,  §  22,  pp.  48-50. 
Eoad  engines,  use  of  in  switching,  without  footboards  as  negli- 
gence, §  23,  pp.  50,  51. 
Eules,  failure  to  adopt  as  actionable  negligence,  §  19,  p.  43. 
Safety  Appliance  Act,  couplers,  insufficiency  of  evidence  to  show 

defects,  §  24,  p.  64. 

effect  as  dispensing  with  proof  of,  §  21,  p.  47. 
necessity  for  proving  in  case  of  violation  of,  §  21,  pp.  46,  47. 
sufficiency  of  evidence  to  show  violation  of,  §  24,  p.  58. 
Slipping  of  tie  while  being  handled,  §  24,  p.  62. 
Snow,   section   hand  killed  while   sweeping   from   switches,    §  23, 

p.  52. 
Sole  cause  of   injury,  effect  where   due  to   plaintiff's   own   act, 

§  117,  p.  222. 
State  laws,  application  in   determining  negligence  of  employer, 

§  12,  p.  22. 
Strain  caused  by  moving  handcar  from  track  to  avoid  collision, 

§  24,  p.  62. 
Substitution  of  appliances,  insufficiency  of  evidence  to  show  neg- 
ligence, §  24,  p.  60. 
Switchman  walking  on  track  killed  by  slowly  moving  engine,  §  24, 

p.  55. 
Switch  stands,  employe  striking  while  riding  on  car,  §  24,  p.  55, 


INDEX  493 

NEGLIGENCE— Cont. 

Tracks,  duty  to  anticipate  that  person  will  step  on  track  in  front 

of  engine,  §  24,  pp.  60,  61. 
Unfloored  trestle,  failure  of  conductor  to  warn  porter,  §  23,  p.  53. 
Warning,   car   repairer   run   over   in   yards   by   engine   switching 
without  warning  or  lights,   §  24,  p.  59. 

failure   of   conductor   to   warn   porter   that   trestle  was   not 

floored,  §  23,  p.  53. 
failure  to  warn  car  repairer  of  switching  operations,   §  24, 

p.  58. 
injury  to  track  laborer  by  switch  engine  approaching  with- 
out, §  24,  p.  57. 
Wilful  wrongs,  inapplicability  of  act  to,  §  25,  p.  65. 
NEXT  OF  KIN— 

Illegitimates  as  included,   §  92,  pp.   180,  181. 
NONSUIT— 

Contributory  negligence  not  ground  for,   §  116,  p.  221. 
NOTICE— 

Injury,  state  laws  requiring  notice  of,  inapplicable,  p.  17n, 

O 

OBJECTS  NEAE  TEACK— 

Brakeman  crushed  against  platform,  failure  to  show  negligence, 
§  24,  p.  63. 

Brakeman  struck  by  cars  on  adjoining  track,  §  24,  p.  56. 

Cinder  pile,  when  negligence  question   for  jury,   §  24,  p.   55. 

Switch  stands,  employe  striking  while  riding  on  car,  §  24,  p.  55- 

Striking  unlighted  switchstand,  risk  not  assumed,  §  104,  p.  206. 
OBSOLETE  APPLIANCES— 

Supplying  engines  with,  §  24,  p.  57. 
OFFICE— 

Carpenters  engaged  in  building  as  employed  in  interstate  com- 
merce, §  41,  p.  106. 
OFFICEES— 

Construction  of  Employers '  Liability  Act  as  to,  §  19,  p.  43. 
OlLt— 

Injury  while  transporting  from  car  for  use  on  engines,  §  37,  p.  97. 

Switching  crew  moving,  as  engaged  in  interstate  commerce,  §  34, 
p.  86. 
OILING— 

Injury  to  fireman  whUe  oUing  engine  preparatory  to  interstate 
trip,  §38,  p.  97, 
OPENINGS  IN  PLATFOEM— 

Failure  to  Ulimiinate  and  guard,  §  24,  p.  55. 
OEDEES— 

Interstate   Commerce   Commission,    see   Inteestate   Commerce 

-i>MM:iSSlON. 


494  INDEX 

OEDERS— Cont. 

Negligence  in,  when  not  shown,  §  24,  pp.  64,  65. 

P 

PAIN  AND  SUFFERING— 

Death,  right  of  beneficiaries  to  recover  for,  §  89,  pp.  174-176. 
Recovery  for,  prior  to  1910  amendment,  §  84,  pp.  162,  163. 
PANAMA  CANAL  ZONE— 

Application  of  Employers '  Liability  Act  to,  §  70,  p.  144. 
PARENT  AND  CHILD— 

Damages,    apportionment    between    mother    and    chUd,    pp.    154, 
155n. 

death  of  child  where  widow  or  children  survive,  §  73,  p.  147. 
Death,  loss  of  care,  counsel,  training  and  education  by  minors 

as  elements  of  damages,  §  81,  pp.  158,  159. 
Death  of  adult  son,  measure  of  damages,  §  80,  pp.  154-156. 
PARTIES— 

Actions,  persons  entitled  to  bring,  §  71,  p.  146. 

Actions  under  Federal  Employers'  Liability  Act,  proper  parties, 

§§  139-147,  pp.  246-253. 
Administrators,  revival  of  actions  commenced  by  employe  during 

lifetime,  §  143,  p.  251. 
Ancillary  administrator,  right  to  sue  for  death,  §  142,  p.  250. 
Foreign  administrator,  right  of  to  sue,  §  147,  p.  253. 
Lessor  of  railroad  as  party  defendant,  §  146,  pp.  252,  253. 
Want  of  capacity  in  widow  to  sue  not  waivable,  §  141,  pp.  248, 
249. 
when  may  be  raised,  §  241,  pp.  248,  249. 
Widow  suing  in  own  name  in  one  suit  and  as  administratrix  in 
another,  election,  §  175,  pp.  307-311. 
PASSENGER  CAES— 

Equipment  on,  order  of  Interstate  Commerce  Commission,  App. 
pp.  432-438. 
PASSENGER  RAILROADS— 

Employers '  Liability  Act,  application  to,  §  59,  pp.  130,  131. 
PASSENGER  RECORDS— 

Custodian  of,  §  168,  p.  291. 
PASSENGERS— 

Express  agents  as  passengers  or  employes  of  railroad,  §  44,  p. 
109. 
PASSES— 

Brakeman  injured  while  returning  from  work  on,  §  39,  p.  102. 
PAUPERS— 

Right  to  sue  as,  in  federal  courts,  §  179,  pp.  318,  319. 
PERSONAL  ERRANDS— 

Fireman  injured  on  returning  to  work  from,  §  39,  pp.  101,  102. 
Injury  to  employe  while  returning  from,  p.  25ru 


INDEX  495 

PILE  DRIVER— 

Eepairing  bridge,  employe  struck  by  pile,  §  23,  p,  52. 
PILOTS— 

Hostler 's  helper  injured  while  riding  on,  in  violation  of  rules, 

§  14,  p.  29. 
SiU  steps  on,  order  of  Interstate  Commerce  Commission,  App. 

p.  438. 
Use  of  engine  not  equipped  with  footboard  as  negligence,  §  23, 
pp.  50,  51. 
PIPE  BREAKING— 

Negligence,  insufl&eiency  of  evidence  to  show,   §  24,  p.  63. 
PITS— 

Engineer  falling  into,  on  stepping  from  engine,  §  14,  p.  26. 
FaU  into,  risk  assumed,  §  105,  pp.  210,  211. 
PLACE  OF  INJURY— 

Conductor  injured  while   inspecting  interstate  train   from  scale 

track,  §38,  p.  98. 
Effect  as  determining  application  of  Act,  §  28,  p.  69. 
Going  to  work  to   relieve   interstate   crew,  fireman   killed,   §  39, 

p.  100. 
Liability  as  affected  by  violation  of  rule,  §  14,  p.  29. 
Liability  when  disconnected  with  employment,  §  14,  p.  24. 
Rest   shanty,   hostler   injured   while   walking   through   yards    to, 

§  39,  p.  102. 
Returning   from   work   on   hand    car,    employment   in   interstate 

commerce,  §  39,  p.  99. 
Sleeping  in  bunk  car,  employment  in  interstate  commerce,  §  39, 

pp.  99,  100. 
Street,  employe  injured  while  walking  on,  §  39,  p.  103. 
PLANT  FACILITIES- 

Logging  roads  as,  §  54,  pp.  124,  125. 
PLATFORMS— 

Boxes  on,  steps  of  baggage  car  torn  off  by  striking,  §  23,  p.  53. 
Brakeman    crushed    against,    failuxe    to    show    negligence,    §  24, 

p.  63. 
Openings,  failure  to  illuminate  and  guard,  §  24,  p.  55. 
PLEADING— 

Amendment,  conformity  to  proofs,  p.  256n. 
controlling  effect  of  state  laws,  §  9,  p.  16. 
propriety  of  after  expiration  of  period  of,  §  162,  pp.  281-284. 
to  answer  setting  up  statute  after  evidence  in,  propriety  of 

striking,  §  161,  p.  281. 
when  not  allowed  after  expiration  of  period  of  limitation, 
§  163,  pp.  285-287. 
Answer,  omissions  supplied  by,  §  150,  p.  260. 

right  to  raise  applicability  of  Federal  Act  by,  §  159,  p.  277. 


496  INDEX 

PLEADING — Cont. 

Assumption  of  risk,  necessity  for,  §  106,  p.  212. 
Beneficiaries  named  in  statute,  necessity  for  allegation  of  sur- 
vival of,  §  157,  pp.  274,  275. 
Cause  of  action  under  Federal  Act,  recovery  where  petition  under 

state  law,   §§  149,  160,  pp.   257-263,  277-280. 
Cause  of  action  under  state  law,  recovery  not  permitted  under 
Federal  Act,  §  148,  p.  255. 
recovery  permitted  under  Act,  when,  §  150,  p.  250. 
harmless  error  when,  §  151,  pp.  263-268. 
Cause  of  action,  when  stated,  §  23,  p.  54. 
Children,  necessity  for  allegations  as  to  number  and  age,  §  157, 

p.  275. 
Common  carrier,  necessity  for  alleging  that  defendant  is,  §  148, 

p.  256. 
Contributory  negligence,  necessity  for  determined  by  state  law, 

§  119,  pp.  226,  227. 
Counts,  petition  setting  causes  of  action  under  both  state  and 
federal  laws  in  different  counts,  §  149,  p.  257. 

right  to  set  up  action  under  both  state  and  Federal  Acts  in 
separate  counts,  §  152,  pp.  268-270. 
Defective   statement   of   cause   of   action   as   distinguished   from 

defective  cause  of  action,  §  150,  p.  263. 
Defendant,  necessity  for  pleading  Federal  Act  to  defeat  recovery 

under  state  law,  §  161,  p.  280. 
Demurrer,  misjoinder  of  counts  setting  up  cause  of  action  under 
state  and  Federal  Acts,  p.  269n. 

waiver  of  departure  by  going  to  trial,  §  150,  p.  263. 
Departure,  reply  seeking  application  of  Federal  Act  as  consti- 
tuting, §  150,  p.  263. 
Election,  controlling  effect  of  state  laws,  §  9,  p.  16. 
Iowa  Statute,  §  173,  pp.  302-304. 
law  governing,  §  173,  pp.  302-304. 
stage  of  proceedings  at  which  should  be  sustained,   §  172, 

pp.  300-302. 
when  motion  should  have  been  sustained  before  trial,  §  174, 

pp.  304-307. 
widow  suing  in  own  name  in  one  suit  and  as  administratrix 
in  another,  power  to  require,  §  175,  pp.  307-311. 
Facts  showing  injury  within  act,  necessity  for  pleading,   §  148, 

pp.  254-256. 
Federal  questions,  necessity  for  raising  by,  to  permit  review  by 

U.  S.  Supreme  Court,  §  135,  p.  243. 
Interstate  commerce,  insufficiency  of  allegation  to  show  engage- 
ment in,  §  156,  p.  273. 

necessity  for  alleging  engagement  in,  §  148,  p.  .256. 


INDEX  497 

PLEADING— Cont. 

Interstate  commerce — Cont. 

sufficiency  of   allegations  as  to  engagement  in,   §§34,   155, 
pp.  87,  271-273. 
Jumping   from   train   in   fear   of   explosion,    sufficiency   of   com- 
plaint, p.  272n. 
Limitations,  propriety  of  amendment  after  expiration  of  period 
of,  §  162,  pp.  281-284. 

when  not  allowed  after  expiration  of  period  of,  §  163,  pp. 
285-287. 
Negligence,  sufficiency  of  determined  by  state  laws,  §  154,  p.  271. 
Pecuniary  loss  to  beneficiaries,  necessity  for  allegation  showing, 

§  158,  pp.  275,  276. 
State  laws  as  to  sufficiency   of  pleading,   controlling   effect   of, 

§  154,  p.  271. 
State   rule   of   procedure   as   determining   right   to   plead   under 

separate  counts,  p.  269n. 
Statute,  necessity  for  expressly  declaring  on,  pp.  260,  261n. 
necessity  for  pleading,  p.  256n. 
necessity  for  specific  reference  to,  §  153,  p.  270. 
sufficiency  of  allegations  to  bring  case  within,  §  153,  p.  270. 
Variance,  controlling  effect  of  state  laws,  §  9,  p.  16. 

petition  under  state  law  and  evidence  showing  application  of 
Federal  Act,  §  160,  pp.  277-280. 
POLING  CAR— 

Switchman  killed  while,  liability  for,  §  24,  pp.  56,  57. 

POOEr— 

See  Paupers. 
PORTERS— 

Falling  through  bridge,  §  23,  p.  53. 

Injured  while  lifting  ice  for  water  cooler,   §  38,  p.  94. 
Pullman,  employment  in  interstate  commerce,  §  43,  pp.  108,  109. 
POWER  BRAKES— 

Interstate    Commerce    Commission    order    fixing    minimum    per- 
centage of,  App.  p.  394. 
Provisions  governing,  App.  pp.  386-393. 
PRACTICE— 

Demurrer  to  evidence,  state  laws  inapplicable  in  ruling  on,  §  166, 

p.  289. 
Election,  Iowa  Statute,  §  173,  pp.  303,  304. 

law  governing  motions  to  require,  §  173,  pp.  302,  303. 
power  to  require  as  to  widow  suing  in  own  name  in  one  suit 

and  as  administratrix  in  another,  §  175,  pp.  307-311 
stage  of  proceedings   at  which   should   be   sustained,    §  172, 
pp.  300-302. 

Roberts  Liabilities— 32 


498  INDEX 

PBACTICE— Cont. 
Election — Cont. 

when   motion  to   require  should  be  sustained   before  trial, 
§  174,  pp.  304-307. 
Employers'  Liability  Act,  matters  of  practice  under,  §§172-179, 

pp.  300-319. 
Evidence  under  Federal  Act,  §§  164-171,  pp.  288-299. 
Jury  of  less  than  twelve,  effect  of  state  laws  permitting  verdict 

by,  §  176,  pp.  312-314. 
Parties,  see  Parties. 
Pleadings  in  actions  under  Employers'  Liability  Act,  §§  148-163, 

pp.  264-287. 
EeB   adjudicata,   when   judgment  in   action   under   state  law   is, 

§  177,  pp.  314-317. 
State  laws,  controlling  effect  of  in  action*  under  Federal  Act, 
§§  9,  18,  pp.   16,  35. 
PEESUMPTIO'NS— 

Damages  for  death  of  husband  and  father,  §  57,  pp.  151,  152. 
Intrastate   commerce,   presumptions   as   to   employment  in,    §  47, 

p.  116. 
Negligence,  when  state  laws,  as  to  inapplicable,  §  18,  p.  38. 
PRIVATE  CAES— 

Switching  crew  coupling  switch  engine  to,  as  employed  in  inter- 
state commerce,  §  47,  p.  115. 
PEOXIMATE  CAUSE— 

Hours  of  Service  Act,  necessity  for  showing  proximate  caiue  of 

■   injury,  §  13,  p.  23. 

Liability   for   injuries   resulting    from    concurrent    causes,    §  15, 

p.  30. 
Necessity  for  proving  employer's  negligence  as,  §  13,  p.  23. 
Plaintiff's  negligence  as,  where  defendant's  negligence  part  of 

causation,  §  16,  p.  31. 
Porter  falling  through  unfloored  trestle,  failure  of  conductor  to 
warn  as,  §  23,  p.  53. 
PULLMAN  EMPLOYES— 

Interstate  commerce,  employment  in,  §  43,  pp.  108,  109. 
PUMPING  WATEEr- 

Engineer  injured  while  pumping  for  use  by  engines,  employment 
in  interstate  commerce,  §  37,  p.  95. 

Q 

QUESTIONS  FOE  JUEY— 

Assumption  of  risk,  clearance  between  cars,  §  104,  pp.  203,  204. 

fall  from  pilot  of  road  engine,  §  104,  p.  204. 
Interstate  commerce,  duty  to  submit  to  jury  in  case  of  doubt, 
I  51.  p.  119. 
engagement  in,  §  172,  p.  301. 


INDEX  499 

QUESTIONS  FOR  JURY— Cont. 

Law  governing  remedy,  propriety  of  submitting  to  jury,   §  51, 

p.  119. 
Negligence,  cinder  pile  near  track,  §  24,  p.  55. 
coUapse  of  bridge,  §  23,  p.  50. 
failure  to  illurainate  and  guard  openings  in  platform,  §  24, 

p.  55. 
faUure  to  warn  car  repairer  of  impending  switching  opera- 
tions, §  24,  p.  58. 
kicking  cars  without  lights  or  warning,  §  24,  p.  56. 
movement  of  engine  in  yards  without  warning  or  lights,  §  24, 

p.  59. 
section  hand  killed  while  sweeping  snow  from  switches,  §  23, 

p.  52. 
supplying  engine  with  obsolete  lubricator,  §  24,  p.  57. 
switch  stands  near  track,   §  24,  p.  55. 

use  of  road  engine  without  footboard  in  switching,  §  23,  pp. 
50,  51. 
When  case  suflicient  under  state  laws  should  be  submitted,  §  18, 
p.  36. 

R 
RAILROAD  YARDS— 

See  Yards. 
RAILROADS— 

Common  carriers,  extent  of  use  as  determining  character  of,  §  54, 
p.  125. 

necessity  for  showing  operation  as,  §  54,  p.  123, 
test  for  determining  character  as,  §  54,  p.  125. 
Congress,  power  over,   §  5,  p.  9. 
Defined,  §  53,  p.  122. 

Express  agents  as  employes  of,  §  44,  p.  109. 
Interstate  commerce,  engagement  in,   §  52,  pp.   121,  122. 
instances  showing  engagement  in,  §  63,  pp.  133,  134. 
necessity  for  alleging  engagement  in,  §  148,  p.  256. 
proof   of  engagement  in,  insufficient  to   show  servant  simi- 
larly employed,   §  55,  p.   126. 
proof  that  servant  was  engaged  in  sufficient,  §  55,  pp.  125, 

126. 
sufficiency   of   allegations  as  to   engagement  in,    §  155,   pj). 
271-273. 
Intrastate  carrier,  acceptance  of  shipments  to  or  from  foreign 
state,  §  67,  p.  136. 

participating    in    movement    of    interstate    shipment,    §  65, 
p.  135. 
Intrastate    term  inn  Is,    passage   into    another    state    as    affecting 
engagement  in  interstate  commerce,  §  63,  p.  134. 

passage  through  another  state  en  route  between,  §  66,  p.  135. 


500  INDEX 

EAILROADS— Cont. 

Lessors,  liability  under  Employers '  Liability  Act,  §  57,  pp.  127, 
130. 

when  may  be  joined  as  defendant,  §  146,  pp.  252,  253. 
Logging  roads,  application  of  Employers '  Liability  Act  to,  §  54, 

pp.   124,  125. 
Passenger  railroads,  application  of  Employers'  Liability  Act  to, 

§  59,  pp.  130,  131. 
Pleading,  insufficiency  of  allegation  to  show  engagement  in,  §  156, 

p.  273. 
Private  switches  as  railroads,  §  53,  p.  123. 
Pullman  porters  as  employes  of  raUroad,   §  43,  p.   109. 
Keshipment   from   point   of   delivery    as    changing   character   of 
traffic,  §  68,  p.  138. 

when  does  not  change  interstate  character  of  traffic,   §  69, 
pp.  141-143. 
Street  raUroads  as,  §  61,  pp.  131-133. 

Vessels,    necessity    for    connection    with    railroad    system,    §  60, 
p.  131. 
RAILS— 

Rebound  of,  when  thrown  on  ground,  risk  assumed,  §  105,  p.  209. 
Unloading  new,  employes  engaged  in  as  employed  in  interstate 
commerce,  §  46,  p.  112. 
REBUILDING— 

Employes  engaged  in  as  employed  in  interstate  commerce,  §  41, 
pp.  106,  107. 
RECEIVERS- 

Employers '  Liability  Act,  application  to,  §  56,  pp.  126,  127. 
Proof   of   appointment   and   authority,   necessity   for,    §  56,   pp. 
126,  127. 
RECORDS— 

Destruction  of  record  of  interstate  shipments,  §  167,  pp.  289,  290. 

Evidence  of  interstate  shipments,  §  167,  pp.  289,  290. 

Nature  and  character  of  records  showing  character  of  business 

transacted  by  railroad,  §  168,  pp.  292,  293. 
Statutes   governing   records   of   interstate   shipments,    §  167,   pp. 

289,  290. 
Subpoena  duces  tecum,  production  by,  §  168,  p.  293. 
REGISTERS— 

Nature  and  contents  showing  character  of  business  employed  in, 
§  168,  p.  292. 
RELATIVES— 

Brothers  as  dependents,  §  80,  p.  157. 

Dependent,  necessity  for  existence,  as  condition  to  action,  §  74, 
p.  148. 


INDEX  501 

RELIEF  FUNDS— 

Contracts  exempting  carrier  from  liability  forbidden,  §§  120-123, 

pp.  228-231. 
No  bar  to  suit,  §  123,  pp.  230,  231. 
REMOVAL  OF  CAUSES— 

Petition    failing    to    state    cause    of    action    under    Federal    Act 

although  intended  to  be  brought  thereunder,  §  128,  pp.  236,  237. 

Petition  stating  cause  of  action  under  state  law  in  one  count  and 

under  Federal  Act  in  another,  §  127,  pp.  234-236, 
Prohibited,  §  126,  pp.  233,  234. 
REPAIRERS— 

Fall  of  engine,  insufficiency  of  evidence  to  show  negligence,  §  24, 
p.  60. 
REPAIRS— 

Bad  order  cars  on  repair  tracks,  employment  in  interstate  com- 
merce, §  63,  p.  134. 
Car  repairer,  injury  while  working  on  empty  car  returning  from 
interstate  trip,  §  32,  p.  80. 

killed  by  switching  operations  while  working  on   car,   §  24, 
p.  58. 
Cars  engaged  exclusively  in  intrastate  commerce,  §  32,  p.  80. 
Carrying  bolts  for  repair  of  bridge,  injury  to  employe  engaged 

in,  §  30,  p.  74. 
Employes  engaged  in  making  as  employed  in  interstate  commerce, 

§41,  pp.  106,  107. 
Iron  worker  repairing  bridge,  as  engaged  in  interstate  commerce, 

§  30,  p.  74. 
Switches,  employe  injured  while  repairing,   §  20,  pp.  45,  46. 
Track  laborers  repairing  track  as  engaged  in  interstate  commerce, 
§  46,  p.  111. 
REPAIR  SHOPS— 

Interstate  commerce,  employes  carrying  coal  to  heat  as  engaged 
in,  §  45,  p.  110. 
REPORTS— 

House  Judiciary  Committee  on  Act  of  1908,  App.  pp.  328-341. 
Nature  and  contents  of,  showing  character  of  business  engaged 

in,  §  168,  p.  292. 
Senate  Judiciary  Committee  on  amendments  of   1910,  App.  pp. 
348-373. 
RES  ADJUDICATA— 

Action  under  state  law,  when  is,  §  177,  pp.  314-317. 
RES  IPSA  LOQUITUR— 

Application  of  doctrine  of,  §  22,  pp.  48-50. 
RESHIPMENTS— 

Interstate  commerce,  effect  as  changing  character  of  interstate 
shipment,  §  68,  p.  138. 


502  INDEIX 

EESHIPMENTS— Cont. 

Interstate  commerce — Cont. 

when  does  not  change  interstate  character  of  traffic,   §  69, 
pp.  141-143. 
REST  SHANTY— 

Hostler  injured  while  walking  through  yards  to,  §  39,  p.  102. 
RETURNING  FROM  WORK— 

Hand  car,  section  man  returning  on,  §  39,  p.  99. 

Hostler  injured  while  walking  through  yards  to  rest  shanty,  §  39, 

p.  102. 
Riding  home  on  train,  employment  in  interstate  commerce,  §  39, 

p.  103. 
Track  laborer  injured  in  collision  between  hand  cars,  §  23,  p.  51. 
REVIVALr- 

Personal  representative  alone  entitled  to  revive  suit,  §  143,  p.  251. 
ROAD  ENGINES— 

Fall  from  pilot,  when  risk  not  assumed,   §  104,  p.  204. 
Switching,    use   of   without    footboard    as    negligence,    §  23,    pp. 
50,  51. 
ROTARY  SNOW-PLOW— 

Engineer  operating,  killed  by  collapse  of  bridge,  §  23,  p.  50. 
ROUNDHOUSE— 

Destruction   by   fire,    employes    engaged   in    removing    debris   as 

engaged  in  interstate  commerce,  p.  106n. 
Engineer  stepping  into  pit  from  engine  cab,  §  14,  p.  26. 
Fall  of  engine,  insufficiency  of  evidence  to  show  negligence,  §  24, 

p.  60. 
Hostlers  as  employed  in  interstate  commerce,  §  46,  pp.  112,  114. 
Injury  while  working  on  engine  returned  from  intrastate  trip, 

§32,  p.  81. 
Repairing    engines,    engagement    in    interstate    commerce,    §  31, 
p.  80. 
RULES— 

Failure  to  adopt,  when  result  of  negligent  act  of  feUow-servant 

within  act,  §  19,  p.  43. 
Violation,  hostler's  helper  injured  whOe  riding  on  engine  in,  §  14, 
p.  29. 

not  assumed  risk,  §  102,  p.  200. 

regulating    speed    and    signals    as    negligence    on    part    of 
employer,   §  18,  p.  41. 
RUNNING  BOARDS— 

Caboose  cars,  order  of  Interstate  Commerce  Commission,  App. 

p.  425. 
Locomotives,   specifications  regarding,   order   of   Interstate   Com- 
merce Commission,  App.  p.  444. 
Order  of  Interstate  Commerce  Commission  regarding,  App.  p.  401. 


INDEX  503 

RUNNING  BOAEDS— Cont. 

Tank    ears,    order    of    Interstate    Commerce    Commission,    App. 

pp.  418,  422. 
Text  of  statute  governing,  App.  p.  391. 

S 
SAFETY  APPLIANCE  ACTS— 

Amendment  of  1910,  App.  pp.  390-393. 
of  1893,  text  of,  App.  pp.  388-390. 
Construction  with  Interstate  Commerce  Act,  §  53,  p.  123. 
Couplers  defective,  insufficiency  of  evidence  to  show,  §  24,  p.  64. 
Decisions   construing,   application   to   Employers'   Liability  Act, 

§  50,  pp.  117-119. 
Equipment  of  cars,  duty  as  to,  irrespective  of  character  of  com- 
merce engaged  in,  §  50,  p.  118. 
Negligence,  effect  as  abrogating  common-law  liability  for,  §  21, 
p.  47. 

necessity  for  proving  in  case  of  violation  of,  §  21,  pp.  46,  47. 
Pleading,  sufficiency  of  allegations,  §  148,  p.  256. 
Text  of,  App.  pp.  386-388. 

Violation  of,  sufficiency  of  evidence  to  show,  §  24,  p.  58. 
SAFETY  APPLIANCES— 

Order  of  Interstate  Commerce  Commission,  extension  of  time  for 
compliance  with,  App.  pp.  447-449. 

fixing  number,  dimensions,  location  and  manner  of  applica- 
tion of  certain,  App.  pp.  397-446. 
Power  of  Interstate  Commerce  Commission  to  designate,  App. 
p.  391. 
SAli'ETY  RAILINGS— 

Tank  cars,  order  of  Interstate  Commerce  Commission,  App.  pp. 
415,  420,  423. 
SALOONS— 

Injury  to  employe  while  returning  from,  p.  25n. 
SCOPE  OF  EMPLOYMENT— 

Employe  injured  whUe  violating  rule,  §  14,  p.  29. 

Negligent  fellow- servant,  necessity  that  act  be  committed  within, 

§  14,  p.  24. 
Section   foreman   giving  warning  of   collision  as   acting  within, 
§  14,  p.  28. 
SCUFFLING— 

Liability  for  injury  to  fellow-servant  caused  by,  §  14,  p.  25. 
SECTION  FOREMAN— 

Injury  by  interstate  train,  §  36,  p.  94. 

Section    man    injured    on    jumping    from    train    in    response    to 

warning  of,  §  14,  p.  28. 
Strain  caused  by  moving  car  from  track  to  avoid  collision,  §  24, 
p.  62. 


504  INDEX 

SECTIONMEN— 

Ballasting  railroad   track,   employment   in  interstate   commerce, 

§  36,  p.  93. 
Driving  spikes  on  track  used  by  interstate  and  intrastate  trains^ 

§36,  pp.  93,  94. 
Employers '  Liability  Act,  application  to,  §  36,  pp.  93,  94. 
Injury  on  jumping  from  train  on  warning  of  foreman,  §  14,  p.  28. 
Interstate  commerce,  method  of  proving  engagement   in,   §  169, 

p.  293. 
Eebound  of  rail  thrown  on  ground,  risk  assumed,  §  105,  p.  209. 
Eeturning  from  work  on  handcar,  employment  in  interstate  com- 
merce, §  39,  p.  99. 
Sidetrack,  injured  while  placing  rail  in,  §  36,  p.  93. 
Slipping   of   tie  while  being   handled,   when   result   of   accident, 

§  24,  p.  62. 
Sweeping  snow  from  switches,  liability  for  death  of,   §§  23,  36, 

pp.  52,  93. 
Tricycle,  failure  to  show  negligence  in  ordering  application  of 

brakes,  §  24,  pp.  64,  65. 
Warning,  failure  to  give,  as  to  impending  danger,  §  24,  p.  59. 
SEMAPHOEE  POST— 

Conductor  on  lessee  railroad  injured  on  striking,  §  57,  p.  129. 
SHIPMENTS— 

Character   of  single  shipment  as   determining  character   of   em- 
ployment, §  27,  p.  68. 
Interstate,  contained  in  trains  operating  between  intrastate  ter- 
minals, §  28,  p.  70. 

freight  shipped  to  intrastate  station  destined  beyond  state 
as,  §  28,  p.  69. 
SHIPPING— 

Limitation  of  liability,   effect  of   Employers'   Liability   Act   on 
power,  §  60,  p.  131. 
SHIPS— 

See  Vessels. 
SIDETRACKS— 

Intrastate  cars,  setting  out  on,  where  train  contained  interstate 

shipments,  §  35,  p.  91. 
Placing  rail  in  as  interstate  commerce,  §  36,  p.  93. 
Relaying  rails  on,  employe  injured  while,  §  36,  p.  94. 
SIGNAL  MEN— 

Interstate  commerce,  method  of  proving  engagement  in,   §  169, 
p.  293. 
SIGNAL  SERVICE— 

Construction  of  block  system,  employes  engaged  in  as  employed 

in  interstate  commerce,  §  41,  p.  107. 
Telegraph   linemen   as   employed   in   interstate   commerce,    §  45, 
p.  110. 


INDEX  505 

SIGNALS— 

Section  hand  sweeping  snow  from  switches  killed  by  train  oper- 
ated without,  §  23,  p.  52. 
Violation  of  rules  as  to,  as  negligence  on  part  of  employer,  §  18, 

p.  41. 
SILL  STEPS— 

Locomotives  used  in  road  service,  order  of  Interstate  Commerce 

Commission,  App.  p.  438. 
Order  of  Interstate  Commerce  Commission  regarding,  App.  pp. 

401,  402. 
Passenger  cars,  order  of  Interstate  Commerce  Commission,  App. 

pp.  435,  437. 
Switch  engines,  order  of  Interstate  Commerce  Commission,  App. 

p.  441. 
Tank  cars,  order  of  Interstate  Commerce  Commission,  App.  p. 

422. 
Text  of  statute  governing,  App.  p.  391. 
SISTERS— 

Death  of  brother,  dependency  under  Act,  §  80,  pp.  154-158. 
SLEEPING— 

Employment  in  interstate  commerce  while  asleep  in  bunk  car, 

§  39,  pp.  99,  100. 
Engineer  falling  into  roundhouse  pit  after  sleeping  in  engine, 

§  14,  p.  26. 
SLEEPING  CAR  COMPANIES— 

Interstate  commerce,  employes  as  engaged  in,  §  43,  pp.  108,  109. 
SLEEPING  ON  TRACK— 

Brakeman  injured  whUe,  §  18,  p.  40. 
SNOW— 

Risk  of  injury  while  cleaning  from  tracks  not  assumed,   §  104, 

p.  201. 
Section  hand  killed  whUe  sweeping  from  switches,  §  23,  p.  52. 
Sweeping  from  switches  as  interstate  commerce,  §  36,  p.  93. 
SNOWPLOW— 

Engineer  operating,  killed  by  coUapse  of  bridge,  §  23,  p.  50. 
SPECIAL  AGENTS— 

Assumption  of  risk,  stepping  between  cars  of  train  in  terminal 

yard,  §  105,  p.  209. 
SPEED— 

Assurance  of   fellow-servant   as   to,   when   not  negligence,    §  24, 

p.  61. 
Section  hand  sweeping  snow  from  switches  kiUed  by  train  run- 
ning at  high  speed,   §  23,  p.   52. 
Sudden  reduction  of  speed  of  handcar  as  negligence,  §  23,  p.  51. 
Violation  of  rules  as  to,  as  negligence  on  part  of  employer,  §  18, 

p.  41. 


506  INDEX 

SPIKES— 

Section  man  injured  while  driving,  on  track  used  by  intra  and 
interstate  trains,  §  36,  pp.  93,  94. 
SPOKTIVE  ACT  OF  SERVANT— 

Liability  for  injury  to  fellow-servant,  §  14,  p.  25. 
STARE  DECISIS— 

Damages,  controlling  effect  of  federal  decisions,  §  86,  p.  165. 
Decisions  of  federal  courts  as  controlling  in  determining  negli- 
gence, §  18,  p.  34. 
Effect  of  decisions  of  state  court  that  federal  question  wa«  suf- 
ficiently raised  on  writ  of  error  by  U.  S.  Supreme  Court,  §  134, 
pp.  242,  243. 
STATE  COURTS— 

Actions,  right  to  bring  in,  §  125,  p.  233. 

Assumption  of  risk,  effect  of  decisions  as  to  in  determining  appli- 
cation of  Federal  Act,  §  98,  p.  193. 
Decisions  of  federal  courts  as  controlling  in  determining  negli- 
gence, §  18,  p.  34. 
Effect  of  ruling  of,  that  federal  question  was  sufficiently  raised 

on  writ  of  error  by  U.  S.  Supreme  Court,  §  134,  pp.  242,  243. 
Evidence,  question  as  to  sufficiency  of  as  sustaining  writ  of  error 

by  U.  S.  Supreme  Court,  §  132,  pp.  239-241. 
Federal  question,  insufficiency  of  petition  as  raising,  §  137,  p.  245. 
how  may  be  raised  to  support  writ  of  error  by  United  States 

Supreme  Court,  §  135,  pp.  243,  244. 
not  raised  by  submission  to  jury  under  state  law  at  request 

of  plaintiff  in  error,  §  136,  p.  244. 
on  error  to  state  court,  sufficiency  of  record  to  present,  §  131, 
p.  239. 
Incidental  questions  not  reviewable  on  error  by  United  States 

Supreme  Court,  §  133,  p.  241. 
Jurisdiction  in  general,  §§  124-138,  pp.  232-246. 

of  United   States  Supreme  courts  to  review  judgment  of, 

§  130,  p.  238. 
under  Federal  Act,  rule  prior  to  amendment,  p.  lln. 
Removal  of  cause  to  federal  court  prohibited,  §  126,  pp.  233,  234. 
where  petition  fails  to  state  cause  of  action  under  federal 

act,  §  128,  pp.  236,  237. 
where  petition  states  cause  of  action  under  state  law  in  one 
count  and  under  Federal  Act  in  another,   §  127,  pp.   234- 
236. 
Res  ipsa  loquitur,  application  of  doctrine  of,  §  22,  p.  48. 
STATE   LAWS— 

Actions  under,  proceeding  simultaneously  with  action  under  Fed- 
eral Act,  §  175,  pp.  307-311. 


INDEX  507 

STATE  LAWS— Cont. 

Assumption   of   risk,   application   under   Federal   Act,    §  98,    pp. 

193-197. 

inapplicability  of,  §  100,  pp.  198,  199. 
Cause  of  action   under,  recovery  permitted   under   Federal   Act, 

when,  §  150,  p.  260. 
Contributory   negligence,   necessity   for   pleading   determined   by 

state  law,  §  119,  pp.  226,  227. 
Defect  in  wheels  creating  prima  facie  case,  inapplicability  of, 

§  24,  p.  60. 
Demurrer  to  evidence,  inapplicable  in  ruling  on,  §  166,  p.  289. 
Distribution,  superseded,  §  94,  pp.  188,  189. 
Effect  of  Federal  Employers '  Liability  Act  on,  §  7,  p.  11. 
Election,  law  governing  motions  to  require,  §  173,  pp.  302-304. 
Evidence,  controlling  effect  of  rules  governing,  §  164,  p.  288. 
Illegitimates,  application  of  acts  governing,   §  92,  pp.   180,   181. 
Jury  of  less  than  twelve,  effect  of  state  law  permitting  verdict 

by,  §  176,  pp.  312-314. 
Pleading,  controlling  effect  as  to  sufficiency  of,  §  154,  p.  271. 
Practice,  controlling  effect  of  in  actions  under  Federal  Act,  §  9, 

p.  16. 
Safety  provisions,  application  in  determining  negligence  of  em- 
ployer, §  12,  p.  22. 
STATIONAEY  ENGINEEE— 

Pumping  water  for  interstate  and  intrastate  trains,  employment 

in  interstate  commerce,  §  37,  p.  95. 
STATIONS— 

Boxes  on  platform,  steps  on  baggage  car  torn  off  by  striking, 

§  23,  p.  52. 
Engineer   pumping   water    for   use   by    engines,    employment    in 

interstate  commerce,   §  37,  p.  95. 
Gardeners   caring   for   grounds   as   employed   in   interstate   com- 
merce,  §  45,  p.   109. 
STATUTE  OF  LIMITATIONS— 

See  Limitation  of  Actions. 
STATUTES— 

State,  application  in  determining  negligence  of  employer,  §  12, 

p.  22. 
STEAM  ESCAPING— 

Negligence,  insufficiency  of  evidence  to  show,  §  24,  p.  63. 
STEPS— 

Brake  steps,  order  of  Interstate  Commerce  Commission,  App.  pp. 

400,  401. 
Caboose  cars,  order  of  Interstate  Commerce  Commission,  App.  p. 

428. 
Flat  cars,  order  of  Interstate  Commerce  Commission,  App.  pp. 

414,  415. 


508  INDEX 

STEPS— Cont. 

Headlights,  order  of  Interstate  Commerce  Commission,  App.  p. 
443. 

specifications  regarding,  App.  pp.  445,  446. 
Hopper  and  gondala  cars,  on,  App.  pp.  407-413. 
Locomotives  used  in  road  service,  order  of  Interstate  Commerce 

Commission,  App.  p.  438. 
Passenger  cars,  order  of  Interstate  Commerce  Commission,  App. 

pp.  435,  437. 
Platform  steps  on  caboose   cars,  order   of   Interstate  Commerce 

Commission,  App.  p.  427. 
Sill,  order  of  Interstate  Commerce  Commission  regarding,  App. 

pp.  401,  402. 
Switch  engines,  order  of  Interstate  Commerce  Commission,  App. 

p.  441. 
Tank    cars,    order    of    Interstate    Commerce    Commission,    App. 
pp.  415,  418,  421. 
STRAINS— 

Moving  handcar  from  track  to  avoid  collision,  §  24,  p.  62. 
STREET  RAILROADS— 

Employers'  Liability  Act,  application  to,  §61,  pp.  131-133. 
STREETS— 

Employe  injured  by  timber  thrown  from  train  while  walking  on, 
§  39,  p.  103. 
STUDENT  BRAKEMEN— 

Existence  of  relation  of  master  and  servant  though  no  compen- 
sation paid,  §  14,  p.  28. 
STUDENT   FIREMEN— 

Injury  while  boarding  train,  insufficiency  of  evidence  to  show 
negligence,  §  24,  p.  61. 
SUBPOENA  DUCES  TECUM— 

Production  of  records  showing   engagement  in  interstate   com- 
merce, §  168,  p.  293. 
SUNDAY— 

Track  laborer  injured  while  proceeding  to  get  mail  for  camp  on, 
§  39,  pp.  102,  103. 
SURVIVAL  OF  ACTION— 

Existence  of  dependent  relatives  as  condition  to,  §  74,  p.  148. 
Instantaneous  death,  right  to  recover,  §  85,  pp.  163,  164. 
Negligence,  survival  as  depending  upon  death  being  caused  by, 

§  90,  pp.  176,  177. 
Who  may  revive  suit  commenced  by  employe  in  lifetime,  §  143, 
p.  251. 
SWITCH  ENGINE— 

Footboard,  injury  caused  by  defective,  §  38,  p.  98. 


INDEX  509 

SWITCH  STANDS— 

Employe  striking  while  riding  on  side  of  car,  §  24,  p.  55. 
SWITCHES— 

Employe  injured,  placing  cover  on,  by  intrastate  train,  §  20, 
p.  45. 

relaying  rails  on,  §  36,  p.  94. 
repairing,  right  of  recovery,  §  20,  p.  46. 
Interstate  commerce,  employe  working  on  as  engaged  in,   §  46, 

p.  112. 
Railroads,  private  switch  as,  §  53,  p.  123. 
Snow,  section  hand  killed  while  sweeping  from,  §  23,  p.  52. 
Striking  imlighted,  risk  not  assumed,  §  104,  p.  206. 
Student  brakeman  aiding  in  throwing,  as  employe,  §  14,  p.  28. 
SWITCHING— 

Brakeman  injured  by  striking  cars  on  adjoining  track,  §  24,  p.  56. 
Firemen,   when   not   engaged   in   interstate   commerce,    §  33,   pp. 
84-86. 
SWITCHING  CEEWS— 

Coal,  employes  engaged  in  switching  into  chutes  of  railroad  com- 
pany, §  37,  p.  96. 
Evidence,  sufficiency  to  show  engagement  in  interstate  commerce, 

p.  295n. 
Fall  from  pilot  of  road  engine,  when  risk  not  assumed,  §  104, 

p.  204. 
Going  to  work,  injured  while,  §  33,  p.  83. 

Interstate  commerce,  alternate  engagement  in  interstate  and 
intrastate  commerce  as  affecting  application  of  Act,  §  29,  pp. 
71,  72. 

coupling  switch  engine  to  intrastate  private  car,  §  47,  p.  115. 
employment  in  while  moving  intrastate  train,  §  47,  p.  116, 
handling  of  cars  destined  beyond  state,  §  34,  p.  86. 
movement  of  oil  for  purpose  of  fuel  as  interstate  commerce, 

§  34,  p.  86. 
test  for  determining  engagement  in,  §  33,  pp.  83-86. 
when  considered  as  engaged  in,  §  34,  pp.  86-88. 
Intrastate   cars,   moving   into   or   out   of   interstate   trains,    §  35, 

pp.  88-92. 
Making    up    interstate    train,    injury    by    stepping   on    defective 

footboard,  §  38,  p.  98. 
Movement  of  empty  passenger  cars  on  reaching  terminals  after 

having  been  engaged  in  intrastate  commerce,  §  29,  p.  72. 
Movement   of   intrastate   cars   into   or   out   of   interstate   trains, 

§  35,  pp.  88-92. 
Oil,  injury  while  transferring  from  car  for  use  on  engines,  §  37, 

p.  97. 
Pleading,  sufficiency  of  petition  to   show  employment  in,   §  34, 
p.  87. 


510  INDEX 

SWITCHING  CREWS— Cont. 

Poling  car,  liability  for  death,  §  24,  pp.  56,  57. 

Road   engine,   use   of   instead  of   switch   engine  with   footboard 

as  negligence,  §  23,  pp.  50,  51. 
Walking  on  track,  struck  by  slowly  moving  engine,  §  24,  p.  55. 

TANK  CARS—  '^ 

Appliances  on,  order  of  Interstate  Commerce  Commission  regard- 
ing, App.  pp.  415-424. 
TAP  LINES— 

Common  carriers,  as,  §  54,  pp.  124,  125. 
TEAMSTER— 

Injury   while   engaged    in    constructing   cut-off,    employment   ip 
interstate  commerce,  §  40,  p.  104. 
TELEGRAPH  LINEMEN— 

Interstate  commerce,  employment  in,   §  45,  p.   110. 
TENDERS— 

Boiler  Inspection  Act,  application  to,  App.  p.  450. 
Type  of,  specification  regarding,  order  of  Interstate  Commerce 
Commission,  App.  p.  444. 
TERMINALS— 

Cars,  effect  where  some  of  cars  in  train  operated  between  intra- 
state terminals  are  destined  beyond  state,  §  28,  p.  69. 
Injury  to  brakeman  returning  from  saloon,  p.  25n. 
Injury  to  engineer  while  testing  engines  between  intrastate  ter- 
minals,  §  37,  p.  97. 
Intrastate,  railroads  passing  into  foreign  state  between,  as  en- 
gaged in  interstate  commerce,  §  63,  p.  134. 

trains    operating    between    containing   interstate    shipments, 
§  28,  p.  70. 
Movement  of  empty  passenger  cars  in,  after  use  in  intrastate 

commerce,  §  29,  p.  72. 
Yard   clerks,    injured   while    cheeking    train    in,    employment   in 
interstate  commerce,  §  42,  pp.  107,  108. 
TERRITORIES— 

Application  of  Employers '  Liability  Act  to,  §  70,  p.  144. 
TESTS— 

Engineer   injured   while   testing   engine   between   intrastate   ter- 
minals, §  37,  p.  97. 
TICKET  RECORDS— 

Custodian  of,  §  168,  p.  291. 
TIME  OF  INJURY— 

Employes  going  to  or  returning  from  work,  §  39,  pp.  99-103. 
Engineer  killed  before  beginning  of  working  hours,  §  14,  p.  26, 
Liability  where  disconnected  with  employment,  §  14,  p.  24. 
Returning  from  work,  track  laborer  injured  in  collision  between 
handcars,  §  23,  p.  51. 


INDEX  511 

TOBACCO— 

Employe  loading  on  train  as  engaged  in  interstate  commerce, 
§  37,  p.  97. 
TRACK  LABORERS— 

Ballasting   railroad   track,   employment   in   interstate   commerce, 

§  36,  p.  93. 
Collision  between  handcars,  sudden  reduction  of  speed,  §  23,  p.  51. 
Employers'  Liability  Act,  application  to,  §36,  pp.  93,  94. 
Injury,  cars  proceeding  without  warning,  risk  of  injury  not  as- 
sumed,  §104,   pp.  205,   206. 

sleeping  in  bunk  car,  §  14,  p.  26. 

switch  engine  approaching  without  warning,  §  24,  p.  57. 
Interstate  commerce,  employment  in  repairing  track  as  involving, 
§  46,  p.  111. 

sleeping  in  bunk  car,  §  39,  pp.  99,  100. 
Mail,   injury  while  proceeding  to  get  mail  for  camp,   §  39,  pp. 

102,  103. 
Rebound  of  rail  thrown  on  ground,  risk  assumed,  §  105,  p.  209. 
Snow,   risk   of   injury  while   cleaning   from   track   not   assumed, 
§  104,  p.  201. 
TRACK  LAYER— 

Injury  to,  §  36,  pp.  93,  94. 
TRACKS— 

Intra  and  interstate  trains  using,  injury  to   section   man,   §  36, 

pp.  93,  94. 
Repairing,  employes  unloading  new  rails  for  purpose  of,  as  en- 
gaged in  interstate  commerce,  §  46,  p.  112. 
TRACK  WALKERS— 

Intrastate  train  injuring,  while  on  track  used  for  both  classes 

of  commerce,  §  36,  p.  93. 
Suddenly   stepping  on   track,   insufficiency   of   evidence   to   show 
negligence,  §  24,  pp.  60,  61. 
TRAIN  BREAKING  IN  TWO— 

Brakeman  sent  to  signal  forward  part,  injured  while  sleeping  on 
track,  §  18,  p.  40. 
TRAIN  ORDERS— 

Brakeman    injured   while   boarding   moving   train   on    receiving, 
failure  to  adopt  rules,  §  19,  p.  43. 
TRAIN  SHEETS— 

Contents  and  character  of,  §  168,  pp.  291,  292. 
TRESTLES— 

Burning,  employe  killed  by  falling  of  engine  through,  §  22,  p.  49. 
Porter  injured  by  falling  through,  §  23,  p.  53, 
TRIAL— 

Demurrer  to  evidence,  state  laws  inapplicable  in  ruling  on,  §  166, 
p.  289. 


512  INDEX 

TEIAL— Cont. 

Directed  verdict,  ruling  on  submission  of  as  presenting  federal 

question  reviewable  in  U.  S.  Supreme  Court,  §  132,  p.  240. 
Election,    when    motion   to   require    should    be   sustained   before 

trial,  §  174,  pp.  304-307. 
Jury  of  less  than  twelve,  effect  of  state  laws  permitting  verdict 

by,  §  176,  pp.  312-314. 
Questions   for  jury,   engagement  in   interstate   commerce,   §  172, 

p.  301. 
Submission   to   jury  under   state  law  where   petition   sets   cause 

of  action  under  Federal  Act,  §  149,  p.  257. 
Taking  case  from  jury,  sufficiency  of  evidence  as  determined  by 

rulings  of  state  or  federal  courts,  §  18,  p.  36. 
TEICYCLES— 

Brakes,  insufficiency  of  evidence  to  show  negligence  in  ordering 

application  of,  §  24,  pp.  64,  65. 
Defective  flange,  assumed  risk,  §  98,  pp.  195,  196, 
TUNNELS— 

Employes   engaged    in    constructing   as   employed    in    interstate 

commerce,  §  40,  p.  104. 
Openings  in  platform  in,  failure  to  illuminate  and  guard,  §  24, 

p.  55. 

U 

UNCOVERED  PIT— 

Fall  into,  risk  assumed,  §  105,  pp.  210,  211. 
UNFLOORED  TRESTLE— 

Porter  falling  through,  failure  of  conductor  to  warn,  §  23,  p,  53. 
UNITED  STATES— 

Supremacy  of  laws  of,  §  7,  p.  13. 
UNITED  STATES  SUPREME  COURT— 

Effect  of  ruling  of  state  court  that  federal  question  was  suffi- 
ciently raised,  §  134,  pp.  242,  243. 
Excessiveness  of  verdict  not  reviewable,  §  138,  p.  245. 
Federal  questions,  how  may  be  raised  to  support  writ  of  error 
to  state  court,  §  135,  pp.  243,  244. 

insufficiency  of  petition  as  raising,  §  137,  p.  245. 

not  raised  by  submission  to  jury  under  state  law  at  request 

of  plaintiff  in  error,  §  136,  p.  244. 
on    error   to   state   court,    sufficiency   of   record   to   present, 
§  131,  p.  239. 
Incidental  questions  not  reviewable  on  error  to  state  court,  §  133, 

p.  241. 
Jurisdiction  to  review  judgment  of  state  court,  §  130,  p.  238. 
Question  as  to  sufficiency  of  evidence  to  show  liability  as  sup- 
porting writ  of  error  by,  §  132,  pp.  239-241. 


INDEX  513 

UNLOADING  FEEIGHT— 

Student  brakeman  aiding  in,  as  employe,  §  14,  p.  28. 
UNLOADING  RAILS— 

Employes  engaged  in  for  purpose  of  repair,  as  employed  in  inter- 
state commerce,  §  46,  p.  112. 

V 

VAEIANCE— 

Petition  under  state  law  and  evidence  showing  application   of 
Federal  Act,  §  160,  pp.  277-280. 
VERDICTS— 

Jury  of  less  than  twelve,  effect  of  state  laws  permitting  verdict 
by,  §  176,  pp.  312-314. 
VESSELS— 

Ferry  boats,  application  of  Act  to,  §  60,  p.  131. 
Limitation  of  liability,  power  of  ship  owners  under  Employers' 
Liability  Act,  §  60,  p.  131. 

power  to  enforce  in  admiralty,  §  60,  p.  131. 
Railroad  system,  necessity  for  connection  with,  §  60,  p.  131. 
VOLUNTEERS- 

Hostler's  helper   injured   while   riding   on   pilot   in   violation   of 
rules,  §  14,  p.  29. 

W 

WAIVER— 

Want  of  capacity  in  widow  to  sue  not  waivable,  §  141,  pp.  248, 
249. 
WARNING— 

Failure  to  warn  employe  on  track  of  danger,  §  24,  p.  59. 
Porter   falling   through    bridge,   failure   of    conductor   to   warn, 

§  23,  p.  53. 
Sudden  reduction  of  speed  of  car  without,  §  23,  p.  51. 
Track    laborer    kUled    by    switch    engine    approaching    without 
warning,   §  24,  p.  57. 
WATCHMEN— 

Interstate  commerce,  emplojonent  on  dead  locomotive  as  engage- 
ment in  interstate  commerce,  §  45,  p.  110. 

sufficiency  of  evidence  to  show  engagement  in,  §  171,  p.  298. 
WATER— 

Employes   assisting   in   movement   of,   as   engaged   in   interstate 

commerce,  §  37,  p.  96. 
Engineer  injured  while  pumping  for  interstate  trains  and  intra- 
state trains,  §  37,  p.  95. 
WATER  GAUGE— 

Assumed  risk,  absence  of  glass,  §  105,  p.  209. 

approved  form  of  instructions,  §  99,  p.  197. 
Instructions,  when  erroneous  as  to  duty  to  guard,  §  12,  p.  21. 
Eoberts  Liabilities— 33 


514  INDEX 

WAY  BILI^ 

Nature  and  contents  of,  §  168,  pp.  292,  293. 
WHEEL  EEPOBTS— 

Custodian  of,  §  168,  p.  291. 

How  required  to  be  kept,  §  168,  p.  292. 

Nature  and  contents  of,  §  168,  p.  292. 
WHEELS— 

Defective  flange,  assumption  of  risk,  §  98,  pp.  195,  196. 
WIDOW— 

Action  by,  in  own  name  in  one  suit  and  as  administratrix  in 
another,  election,  §  175,  pp.  307-311. 

Right  to  sue  for  death  of  husband,  §  140,  p.  247. 

Want  of  legal  capacity  to  sue  not  waivable,  §  141,  pp.  248,  249. 
WILFUL  ACTS— 

Inapplicability  of  statute  to,  §  25,  p.  65. 
WITNESSES— 

Competency,  law  governing,  §  165,  p.  169. 
WOEKING  HOURS— 

Engineer  killed  before  beginning  of,  §  14,  p.  26. 

Injury  to  employe  while  sleeping  in  bunk  car,  §  14,  p.  25. 
WRECKING  TRAIN- 

Boilermaker    injured   while   repairing    derrick    engine    on,    §  32, 
pp.  82,  83. 

Boilermakers  repairing  derrick  boiler  as  engaged  in   interstate 
commerce,  §  46,  p.  111. 
WRESTLING— 

Liability  for  injury  to  fellow-servant,  caused  by,  §  14,  p.  25. 

T 

YARD  CLERKS— 

Interstate  commerce,  employment  in,  §  42,  pp.  107,  108. 
YARDS— 

Brakeman  injured  in  after  returning  from  saloon,  p.  25n. 

Cinder  pile  near  track,  maintenance  as  negligence,  §  24,  p.  55. 

Fall  into  "drop  pit,"  risk  assumed,  §  105,  pp.  210,  211. 

Kicking  cars  in,  absence  of  lights  or  warning,  §  24,  p.  56. 

Rest   shanty,   hostler  injured  while  walking   through   yards   to, 
§  39,  p.  102. 

Switchman  killed  while  walking  on  track,  §  24,  p.  55. 


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